The State Education Department
State Review Officer

No. 98-55

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Syosset Central School District

Appearances:
Vanessa M. Sheehan, Esq., attorney for respondent

 

 DECISION

        Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by a subcommittee of respondent's committee on special education (CSE) that her son's classification be changed from speech impaired to multiply disabled and that he receive the services of a consultant teacher, an individual aide, and a speech/language therapist during the 1997-98 school year. Petitioner contends that her son should be declassified, and she requests an order requiring that respondent reimburse her for the cost of private tutoring for her son, as well as for her expenditures for the hearing in this proceeding. She also asks that respondent be required to pay for the private education of her two children until they become eighteen years of age. Petitioner also seeks an order requiring respondent to destroy all "false and damaging accusations," such as any reference to her son being autistic. The appeal must be dismissed.

        At the outset, I note that petitioner has annexed approximately 40 documents as exhibits to her petition. Some of the documents were in the record before the hearing officer and are therefore already in the record before me. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). Most, if not all, of the documents petitioner now asks me to consider could have been introduced at the hearing when petitioner presented her case. However, petitioner elected to have the hearing officer render his decision after the respondent rested its case. While I find that petitioner's choice was ill advised, I will accept the documents annexed to the petition, in the interests of fairness.

        With respect to petitioner's challenge to the accuracy of respondent's records about her son, I must note that Federal regulation prescribes a specific procedure for challenging the accuracy of student records, which is a hearing conducted pursuant to the Family Educational Rights and Privacy Act, rather than a proceeding of this nature. The decisions resulting from those hearings are not subject to review by the State Review Officer (Application of a Child with a Disability, Appeal No. 97-85). While I will review the appropriateness of the boy's classification in this proceeding, I must find that petitioner's claim of false or damaging accusations is well beyond the scope of my jurisdiction.

        Petitioner's son, who is nine years old, has been exposed to both English and French in his home. He reportedly began to speak a few words at the age of eight months, but his speech did not develop at the usual rate. At the age of three, the child was evaluated at the Variety Pre-School's workshop by a psychologist, who reported that the child's parents were concerned about his language development and occasional aggressive and rough behavior with peers (Exhibit 30). The psychologist noted that the child's eye contact was variable throughout the evaluation, and that he often appeared to be distractible and inattentive. She further noted that the boy required urging and redirection to try and continue with test activities. On the Stanford Binet Intelligence Scale: Fourth Edition, petitioner's son received standard scores of 84 for verbal reasoning, 75 for abstract/visual reasoning, and 89 for short-term memory. His test composite score of 80 fell at the low end of the low average range of cognitive ability. The psychologist cautioned that the boy's score might not represent a valid estimate of his true cognitive ability because of his bilingual background. She noted that the child's attentional difficulties had adversely affected his test performance. The evaluator also reported that the child manifested delays in the development of his expressive and receptive language skills, and relative weakness in his perceptual motor and visual motor spatial skills. She opined that the boy would benefit from placement in a small, structured therapeutic nursery program to address his language, visual motor, and social needs.

        The record does not reveal whether the boy was placed in a program similar to that which the Variety Pre-School psychologist had recommended for the 1992-93 school year. During the 1993-94 school year, the child was enrolled in a preschool program provided by the Board of Cooperative Educational Services of Nassau County (BOCES). He was placed in a class with a 9:1+1 child to adult ratio. As the school year went on, petitioner reportedly became concerned about the child's school performance and his self-esteem. The child began taking Ritalin to ameliorate his inattentiveness and motor restlessness.

        In April and May, 1994, the child was evaluated by a BOCES school psychologist, who reported that the child had been active and distractible during his testing, and that he tended to work in a disorganized and poorly planned manner. The child reportedly did not make eye contact with the psychologist when talking to him. On the Stanford Binet Intelligence Scale: Fourth Edition, the child achieved standard scores of 89 for verbal reasoning, 86 for abstract/visual reasoning, 80 for quantitative reasoning, and 85 for short-term memory. Because of the child's limited attention and cooperation, the evaluator opined that the test scores were an accurate description of the child's present functional level, but were not necessarily a valid description of his future cognitive potential. On the Bracken Basic Concept Scale, the child's school readiness composite score indicated a delay of approximately one year in the development of skills necessary for successful performance in kindergarten. His age equivalent score on the Beery Test of Visual Motor Integration indicated a delay of approximately one-half year. The child's preschool class teacher completed a questionnaire which revealed that the boy's classroom behavior fell two standard deviations above the mean for "hyperactivity" and "day-dreaming attention." The BOCES school psychologist opined that while the child was capable of average performance in specific areas, his work was affected to a significant degree by his "drifting off" and his inability to habituate himself to sounds and normal distractions. He recommended that the child be placed in a small structured special education environment in order to achieve future success. A BOCES occupational therapist recommended that the child receive individual occupational therapy twice per week to improve his sensory processing, fine motor, and visual motor skills.

        On May 31, 1994, respondent's CSE met to discuss the child's placement for the 1994-95 school year. It recommended that the child be classified as speech impaired. The minutes of the CSE meeting indicate that the BOCES had recommended that the child continue to be educated in a highly structured special education class, and receive speech/language therapy and occupational therapy, but that the child's parents wanted him to be included in regular education classes with necessary special education services provided to him in those classes. The CSE recommended that he be placed in a special education class in respondent's South Grove Elementary School, where he was to receive speech/language therapy four times per week and occupational therapy twice per week. The child was enrolled in the "Primary 1" class, which had a 12:1+1 child to adult ratio. His report card for the 1994-95 school year indicated that his social and emotional development and work habits were satisfactory. His language arts skills generally needed improvement, as did some of his mathematics skills. His other academic skills were satisfactory. He was enrolled in another Primary 1 class at the South Grove Elementary School during the 1995-96 school year. He made gains in his academic skills and his social and behavioral skills improved during that school year.

        The child had the same teacher in a Primary 1 class at the South Grove School during the 1996-97 school year. In his individualized education program (IEP) which was prepared by a CSE subcommittee on November 20, 1996, the boy was described as a distractible child who had begun to make progress. The child reportedly tried to cooperate in most situations, but he continued to have difficulty focusing and screening out sensory information. He also reportedly had difficulty negotiating appropriate social interactions and required firm, consistent management and frequent redirection. The IEP also indicated that the child was receiving resource room in addition to his special class instruction, and that his resource room teacher would work closely with the child's private tutor to prepare the child for transitioning to his neighborhood school, the Robbins Lane Elementary School, in September, 1997. His resource room teacher instructed him in language arts and mathematics, and the boy showed progress in those subjects. His social and emotional development was generally good. On the Iowa Tests of Basic Skills which were administered to him in January, 1997, the child achieved grade equivalent scores of 2.7 in reading and 3.0 in mathematics.

        In the spring of 1997, the child's triennial evaluation was performed. One of respondent's school psychologists observed the child in several settings as part of her evaluation of him. She reported that he had participated appropriately in routine tasks in his self-contained class, but that his behavior was impulsive on the two occasions she observed him in his resource room class. She further reported that the child had more difficulty staying with the lesson in his mainstreamed music class. During her formal evaluation of him, the child was reportedly continually in motion, but could be refocused. The school psychologist reported that the boy was extremely sensitive to noise, such as the rattle of a door. On the Wechsler Intelligence Scale for Children-III (WISC-III), the child achieved a verbal IQ score of 85, a performance IQ score of 79, and a full scale IQ score of 81. His borderline range score for performance IQ was attributed in part to his slow processing speed. The school psychologist suggested that the child's associational thinking and cognitive confusion had played a large part in his achievement of below average scores for fund of information, sequencing pictures, and social comprehension, and she estimated that he had potentially average intelligence. On the Wechsler Individual Achievement Test, the child's only score which was significantly below average was for mathematics reasoning (13th percentile for grade, 30th percentile for age). His reading decoding, spelling and oral expression were in the average range. Reading comprehension was at the 34th percentile for grade, but 50th percentile for age, and his listening comprehension was at the 34th percentile for grade, but the 45th percentile for age.

        The psychologist opined that the boy's mind was both too active and too obsessive. She indicated that his basic difficulty was in controlling his attention and impulses. The psychologist indicated that the child's internal disorganization and sensitivity to external noises appeared to interfere with his concentration. She noted that the child had evidenced a one-half year delay in his visual motor skills when tested by his occupational therapist, but that his performance on the Bender Visual Motor Gestalt was suggestive of some organic involvement, i.e., a neurological difficulty. The child's special class and resource room teachers completed a form about the child which revealed that he had significant feelings of anxiety and depression, as well as attentional problems, hyperactivity, atypicality and withdrawal. The psychologist reported that projective testing had revealed a child who perceived the world quite differently from his peers. She described the boy's anxiety as being excessive to the extent of distracting him from performing the task at hand and leading him to give up prematurely. The psychologist described the child as having a mild pervasive developmental disorder, with impairments in language, cognitive processing, communication, concentration and attentional abilities, as well as fine and gross motor skills. She reported that he evidenced symptoms of mild autism, such as painful and distracting sensitivity to sound, perseveration, associational thinking, communication oddities, difficulty maintaining eye contact, and postural differences. She opined that the boy needed to feel safe, have a lower stress level, and not be subjected to negative, critical or overly intrusive environmental situations.

        Respondent's psychologist questioned the accuracy of the child's classification as speech impaired, and suggested that classification as multiply disabled, autistic, or learning disabled would more accurately reflect the child's disabilities and service needs. Noting that the boy's parents wanted him to have an inclusion placement in a regular education third grade class in the Robbins Lane Elementary School, the psychologist opined that it would be imperative for the child to have the services of a consultant teacher and a full-time aide in the classroom in addition to the related services of occupational therapy, physical therapy and speech/language therapy. The psychologist indicated that the boy's anxiety could be addressed by either family therapy or child therapy. She recommended that the child also receive adaptive physical education (ADP), and offered several suggestions for the child's third grade teacher.

        The child's physical therapist reported that the child continued to demonstrate some delays in his gross motor ability, but had made some nice gains during the 1996-97 school year. She recommended that he receive physical therapy once per week, either in a group or to coincide with his physical education class, during the 1997-98 school year. The boy's occupational therapist reported that he had made steady progress in all areas. She noted that his written class work had improved markedly. The occupational therapist recommended that the child receive occupational therapy once per week in the 1997-98 school year to address deficits in his visual motor integration skills, motor planning ability, and his attending skills.

        The child's parents met with the CSE on June 17, 1997 to prepare a plan for the child's educational program and placement during the 1997-98 school year. One of the issues which was discussed was whether the child should be placed in a second or a third grade regular education class. The CSE meeting minutes indicate that while some of the results of the child's triennial evaluation suggested that a second grade placement would be appropriate, the CSE agreed to the parents' request to place the boy in a third grade regular education class with a full-time aide at the Robbins Lane Elementary School. The CSE also discussed the child's classification. Over petitioner's objection it recommended that the boy's classification be changed to multiply disabled. It also recommended that the child receive a consultant teacher for one hour per day, ADP twice per week, occupational therapy once per week, physical therapy once per week, and speech/language therapy three times per week.

        On the following day, petitioner requested mediation (see Section 4404-a of the Education Law) to resolve her differences with the CSE, which included the proposed classification as multiply disabled, the provision of either occupational therapy or physical therapy to her son, and the assignment of a individual aide to the boy. Shortly thereafter, the child's parents met with the principal of the Robbins Lane Elementary School in an attempt to reach agreement about the child's educational programs. By memo dated June 20, 1997, the parents and the principal agreed that the child should remain classified as speech impaired, and that he should not receive physical therapy or occupational therapy during the 1997-98 school year. They also agreed that the boy would receive his ADP in his gym class, and that the amount of his speech/language therapy should be reduced to twice per week. They asked that the issue of having an individual aide for the child be reviewed in November, 1997. Petitioner indicated that she wanted an independent psychological evaluation of her son, which respondent agreed to pay for.

        On August 1, 1997, the CSE met with petitioner and the boy's grandfather to consider the modifications in the child's IEP which petitioners and the principal had recommended. Those modifications were approved by the CSE. The child's IEP for the 1997-98 school year was amended to indicate that he was classified as speech impaired, and that he would not receive physical therapy or occupational therapy. His speech/language therapy was reduced to twice per week, and his ADP was to be provided in the gym class. The child would receive one hour of consultant teacher services five times per week. The boy's IEP (Exhibit C-3) indicated that he would have a classroom aide, but that this issue would be reviewed by a child study team in November, 1997.

        On November 17, 1997, a subcommittee of the CSE consisting of the principal, consultant teacher, third grade teacher, school psychologist, and speech/language therapist met with petitioner and the boy's grandfather. At the meeting, the principal, the school psychologist, the third grade teacher and the consultant teacher all agreed that the child continued to require the services of a full-time individual aide. Petitioner indicated that she had not obtained the independent evaluation which she had previously requested. When the discussion turned the child's classification, petitioner and her father-in-law left the room, although they were asked to remain. The subcommittee voted unanimously to change the child's classification to multiply disabled, and to continue to provide the services of a full-time aide. It also requested a review of the child's activities for daily living skills be done by an occupational therapist.

        Petitioner, who had returned to the subcommittee meeting, did not agree with the subcommittee's recommendations. She was offered the opportunity to have the matter reviewed by the full CSE (see Section 4402 [1][b][1][c] of the Education Law). However, petitioner indicated that she would seek mediation, and later that day she submitted a written request for an impartial hearing. On November 24, 1997, respondent appointed the hearing officer in this proceeding. The hearing was scheduled to begin on December 2, 1997. On that day, the parties attempted to resolve their differences off-the-record, but they were unsuccessful. The hearing officer granted petitioner's request for a brief adjournment so that petitioner could obtain legal assistance. By letter dated December 11, 1997, petitioner asked the hearing officer for another adjournment to allow her to obtain the independent evaluation of her son which respondent had authorized in August, 1997. The hearing resumed on March 18, 1998, at which time petitioner asserted that respondent's staff had interfered with her son's independent evaluation. However, she then indicated that she did not wish to pursue that issue. Although she now attempts to raise the issue in this appeal, she cannot do so because she abandoned it at the hearing. The hearing officer took under advisement petitioner's request for a French interpreter to assist her at the hearing. On March 20, 1998, the hearing officer granted petitioner's request for an interpreter.

        On April 7, 1998, petitioner met with the CSE to consider her request that her son's IEP for the 1997-98 school year be amended to discontinue his speech/language therapy to reduce the amount of consultant teacher services for him to three hours per week, and to remove his adaptive physical education teacher from his regular physical education class. The CSE declined to make any of the proposed changes in the child's IEP (Exhibits 16 and 36). Petitioner requested a hearing to review the CSE's refusal to amend her son's IEP. When the hearing in this proceeding resumed on May 14, 1998, respondent moved to consolidate the issues in petitioner's two hearing requests into a single proceeding. Over petitioner's objection, the hearing officer granted respondent's motion.

        The hearing continued on June 11 and 12, 1998 with the testimony of the child's third grade teacher and his consultant teacher. The hearing was scheduled to continue on July 14, 1998. On that date, petitioner asked the hearing officer to recuse himself from this proceeding because of what she believed to be his unfairness towards her. She explained that she didn't want to deal with him any more, and stated that "I'm going to ask you to cancel now and I'm going to request another one later on or go into an appeal or a civil lawsuit" (Transcript, page 1132). Petitioner then walked out of the hearing room, and did not return. The hearing officer indicated on the record that it was unclear whether petitioner had withdrawn her hearing requests, which would have ended his jurisdiction in the matter (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138). He concluded that petitioner had not withdrawn her requests, and proceeded to take testimony from the child's speech/language therapist and ADP teacher, as well as from the chairperson of respondent's committee on preschool special education.

        In his decision which was rendered on August 8, 1998, the hearing officer noted that petitioner had alluded to the child's independent psychological evaluation on a number of occasions during the hearing, but had not introduced the results of that evaluation into evidence. He found that the conclusions reached by the school psychologist in her May, 1997 evaluation (Exhibit F) had not been rebutted at the hearing, and that those conclusions were valid in determining whether the classification of multiply disabled was appropriate for the child. The hearing officer found that the speech/language assessment which respondent's speech/language pathologist had performed in the spring of 1997 supported the boy's classification as multiply disabled, and he noted that the independent speech/language evaluator of the child had concluded that the child had long-term memory and mild articulation problems. The hearing officer found that the child continued to need speech/language therapy. He declined to consider written evaluation reports by respondent's physical therapist and occupational therapist and an independent physical therapy evaluation report because the makers of those reports had not testified at the hearing. The hearing officer found that the testimony by the principal of the Robbins Lane Elementary School, the child's third grade teacher, and his consultant teacher also supported the CSE subcommittee's recommendation that the child be classified as multiply disabled. He further found that the boy's IEPs from November 17, 1997 and April 7, 1998 were appropriate to meet the child's needs, thereby sustaining respondent's position that the child needed a full-time aide, five hours of consultant teacher services per week, 30 minutes of speech/language therapy per week, and 30 minutes of ADP twice per week in the child's physical education class.

        Petitioner challenges both the manner in which the hearing was conducted and the outcome of the hearing. I will first consider petitioner's objections to the way in which the hearing was conducted. Petitioner asserts that respondent used "bashing Mom" as a defensive strategy during the hearing, and that the hearing officer joined in respondent's campaign to discredit her by making inappropriate remarks and raising is voice to her. A hearing officer must avoid even the appearance of impropriety, and must render a decision which is based on the record (Application of a Child with a Disability, Appeal No. 94-32). Inappropriate remarks by a hearing officer may afford a basis for finding that a hearing officer was biased. Regrettably, the hearing transcript in this proceeding reveals that there were a number of sharp exchanges between petitioner, who appeared without a lawyer or lay advocate, and the hearing officer (e.g. Transcript, pages 114-115, 133-1325, 205, 309, 357, 375, and 625). Although petitioner must bear some of the responsibility for the acrimonious exchanges between herself and the hearing officer because of her zeal and unfamiliarity with the legal process, I must point out that a hearing officer, like a judge, must be patient, dignified and courteous in dealing with litigants and others with whom the judge deals in an official capacity (Applications of a Child with a Handicapping Condition, Appeal No. 91-40).

        I have carefully considered the entire record, including the evidentiary rulings which the hearing officer made and his allocation of the burden of proof between the parties. Although petitioner asserted that she had the right to present her case before respondent presented its case, I find that the hearing officer correctly determined that respondent should present its case first since it had the burden of proving that the recommendations of the CSE and its subcommittee were appropriate. I also find that the hearing officer appropriately granted respondent's motion to consolidate the issues raised by petitioner's two hearing requests into a single proceeding since they involved elements of the child's IEP for the 1997-98 school year and had a common question relating to the nature of his special education needs. I have also considered the hearing officer's decision to proceed with the hearing on July 14, 1998 after petitioner walked out of the hearing. There is no evidence of a written request by petitioner to withdraw her two hearing requests. In his decision, the hearing officer indicated that he sent a letter to the child's parents on July 14, 1998, in which he informed them that he would consider the hearing request to be withdrawn if he did not hear from them by July 22, 1998. The hearing officer further indicated that petitioner had responded on July 19, 1998. Petitioner advised him that since respondent had completed its case, her "withdrawal had been rescinded," and asked the hearing officer to render a decision. A hearing officer must go forward with a hearing unless the hearing request has been withdrawn (Application of a Child with a Disability, Appeal No. 97-6). Having reviewed the entire record, I find that there is no basis for annulling the hearing officer's decision on the grounds of actual or apparent bias against petitioner.

        Petitioner asks that I order respondent to declassify her son. However, I must first determine whether the CSE appropriately classified the boy as multiply disabled. The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-37). State regulation defines a multiply disabled child as:

"A student with two or more disabilities that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments" (8 NYCRR 200.1 [mm][8]).

        At the hearing, respondent's school psychologist testified that the child's most significant disabilities were in communications and social interpersonal skills. Respondent's speech/language pathologist testified that the child had a mild speech articulation disability, but that he had more significant expressive language deficits. She explained that the child did not express himself coherently and that he had a great deal of difficulty with syntax, especially with regard to the use of plurals, verbs, tenses, and pronouns. In addition, the boy lacked good pragmatic speech skills. She further testified that at the November 17, 1997 CSE subcommittee meeting she had opined that the classification of speech impaired was inadequate because it did not encompass the child's many disabilities, including hyperactivity, impulsivity, gross motor and fine motor deficits. I have considered the results of the independent speech/language evaluation which was performed in December, 1997. While the independent evaluator reported only two standardized test results, I note that even she recommended that the child receive speech/language therapy to focus upon increasing the child's attention span and improving his memory and articulation skills.

        In addition to communication difficulties, the child also evidenced significant lags in the affective domain. Respondent's school psychologist testified about the boy's responses during projective testing. Those responses were out of the ordinary and appeared to be indicative of the child's anxiety. Additional evidence about the child's anxiety was provided by the child's third grade teacher and his consultant teacher. Their testimony, as well as that by the building principal and respondent's speech/language pathologist, revealed that the child had significant difficulty with independently interacting in an appropriate manner with his peers. The extent and diversity of the child's special education needs are also apparent from his IEP annual goals and short-term objectives. Although the child appears to have made significant progress both academically and socially during the 1997-98 school year, he nevertheless continued to have diverse needs which required support provided by the team of respondent's staff who worked with him during the school year. One of the exhibits annexed to the petition is a report of an independent psychological evaluation conducted at Hofstra University on June 3, 1998. The child achieved a verbal IQ score of 100, a performance IQ score of 104, and a full scale IQ score of 102. While those scores are significantly higher than the child's previous IQ tests scores, it does not follow that he should not have been classified as multiply disabled. I note that the independent evaluator reported that the child became upset when he did not know the answers to questions, had provided unlikely answers to some questions, and had difficulty expressing himself. I find that respondent has met its burden of proof with respect to the classification of the child as multiply disabled.

        In her second hearing request, petitioner asked to have her son's consultant teacher services reduced from five times per week to three times per week. The consultant teacher testified that she had provided direct consultant teacher services four days per week, and indirect consultant teacher services on the fifth day of the week. She also replaced the boy's aide for part of the day on Tuesdays and Thursdays, so that the aide could accompany the child to recess and help him interact with his peers. The consultant teacher explained that she provided specialized instruction in areas of weakness for the child, such as mathematics, and that she worked with the child's third grade teacher and his classroom aide to devise and implement an effective behavior management plan for the child. With regard to petitioner's request for less consultant teacher service, the consultant teacher opined that the child would not have done as well academically as he did do during the 1997-98 school year if her services had been reduced. I find that her testimony is credible, and conclude that the CSE appropriately declined to honor petitioner's request.

        Petitioner also challenges the CSE's refusal of her request to remove the child's aide, who did not testify at the hearing. The child's third grade teacher testified that the aide was necessary for the child to have made the academic and social gains which he achieved during the 1997-98 school year. The child's consultant teacher concurred with that opinion during her testimony. She testified that the aide had helped her to know when the child was having academic difficulties, and the aide had helped implement modifications in the ways in which the third grade curriculum was presented to the child. While I have considered petitioner's claim that the assignment of an individual aide could be stigmatizing to the child, I find that it was reasonable and appropriate for respondent's CSE to recommend that the child have an individual aide during the 1997-98 school year.

        Petitioner also questioned the need for her child to receive speech/language therapy. As indicated above, the CSE had initially recommended that the child receive speech/language therapy three times per week during the 1997-98 school year. However, the CSE subsequently modified its recommendation, and the child received speech/language therapy in a group of five children twice per week. At the hearing, respondent's speech/language pathologist testified that the child's listening skills had improved during the 1997-98 school year, but he continued to have trouble with his expressive language skills. She opined that the child continued to be eligible to receive speech/language therapy because of his difficulties with word retrieval, syntax, social communication skills and speech articulation. As noted above, the child's independent speech/language evaluator recommended that the child continue to receive speech/language therapy. I find that the boy required such therapy during the 1997-98 school year.

        Petitioner also disagrees with the CSE's recommendation that her son receive ADP. ADP is defined by State regulation as:

" ... a specially designed program of developmental activities, games, sports and rhythms suited to the interests, capacities and limitations of students with disabilities who may not safely or successfully engage in unrestricted participation in the activities of the regular physical education program" (8 NYCRR 200.1 [b]).

        Petitioner argues that the CSE's recommendation to provide ADP is not supported by an evaluation of her son's physical needs, and that an independent physical therapy evaluation conducted by the North Shore University Hospital on June 1, 1998 indicates that the child did not require ADP. I must note ADP and physical therapy are not synonymous, as petitioner apparently believes. This child had difficulty following instructions and remaining engaged in the activities of the class. His ADP teacher testified that the child had at times crawled away from the group in physical education, barked like a dog, and touched others. She further testified that the child did not understand the amount of power and force which he used in throwing objects to others, and that his catching skills also presented a safety issue because he would throw his hands in front of his face. I find that respondent has demonstrated why ADP was an appropriate part of the child's educational program.

        I have considered petitioner's other contentions which I find to be either not relevant to the issues to be determined in this appeal, or without merit.

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
February 12, 1999 FRANK MUŅOZ