The State Education Department
State Review Officer

No. 00-042

 

 

 

Application of the BOARD OF EDUCATION OF THE NORTH SALEM CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
McGuire, Kehl & Nealon, LLP, attorneys for petitioner, Marion C. Katzive, Esq., of counsel

Neal H. Rosenberg, Esq., attorney for respondents

 

DECISION

        Petitioner, the Board of Education of the North Salem Central School District, appeals from a hearing officer's decision which ordered it to reimburse respondents for the cost of their daughter's tuition at Eagle Hill School (Eagle Hill), a private school for students with learning disabilities in Greenwich, Connecticut, for the 1998-99 school year. The appeal must be sustained.

        Preliminarily, I will address the procedural issue raised in this appeal. In support of its petition, petitioner has submitted an affidavit prepared by its Director of Pupil Personnel Services. Annexed to the affidavit is the student's December 1999 progress report from Eagle Hill. Petitioner's attorney requests that I accept the additional evidence. I note that respondents have submitted additional evidence with their answer, to which petitioner has submitted a reply. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 93-20). I find that the information submitted by both parties will make the record complete, and in the interest of fairness, I will exercise my discretion and accept the additional evidence (Application of a Child with a Handicapping Condition, Appeal No. 91-25).

        Respondents' daughter was ten years old and in the fourth grade at Eagle Hill when the hearing began in April 1999. Eagle Hill has not been approved by the New York State Education Department to provide education to children with disabilities. The student was initially referred to petitioner's Committee on Special Education (CSE) in September 1996 by her second grade teacher because of difficulties in reading and language arts (Exhibit SD-1).

        A speech/language therapist who evaluated the student for the CSE in October 1996 reported that she had significant speech/language difficulties in the areas of vocabulary and concept development, verbal expression, language skills and listening comprehension (Exhibit 6). Articulation errors also affected the intelligibility of the student’s speech. She achieved scores in the fourth percentile on two standardized tests for speech/language skills. The speech/language therapist who did the evaluation recommended that the student receive speech/language therapy.

        On the Woodcock Johnson Tests of Achievement, the student evidenced mild delays in broad reading and broad written language, but her broad math skills were grade appropriate (Exhibit SD-8). The school psychologist who examined the student for the CSE reported that she had achieved a verbal IQ score of 87, a performance IQ score of 96, and a full scale IQ score of 90 (Exhibit SD-10). He noted that she displayed a weakness in verbal comprehension, and suggested she might benefit from a special education placement.

        In November 1996, the CSE classified the student as learning disabled (Exhibit SD-11). It recommended that she be placed in a "special class/included setting", where the student would receive small group instruction from a special education teacher in reading, writing, spelling, language arts and math, while participating in the regular education classroom with support from the special education teacher for the remainder of the school day (Exhibit 12, Transcript p. 47). The CSE also recommended that she receive 30 minutes of speech/language therapy in a small group three times per week.

        At the end of the 1996-97 school year, the student's second grade teachers reported that she was functioning in the high first to low second grade level in writing, mid-first grade level in reading, and low second grade level in math (Exhibit 12). They indicated that her writing abilities had progressed, noting that she was better able to stay on topic and provide supporting details in her writing. The teachers indicated that the student performed well in a modified spelling program, and was able to generalize spelling words into her writing assignments. The student also had shown improvement in acquiring reading skills, but her ability to demonstrate them was inconsistent. Her sight word vocabulary had grown. While the student had performed well in small group math instruction, her teachers noted that she required redirection when working independently on math tasks because she was easily distracted. The teachers also noted that the student's focus and attention improved in small groups, but she continued to have difficulty in large groups because she was easily distracted by social concerns. They reported that she tended to become preoccupied with social matters and needed to talk through her concerns and arrive at closure before she was able to focus on academics. The teachers recommended that she be placed in a third grade inclusion class and continue to receive speech/language services during the 1997-98 school year.

        In a May 1997 progress report, the student’s speech/language therapist indicated that the student had demonstrated growth in many areas of language functioning, including following multistep directions that involved concepts, attending to language tasks, comparing and contrasting objects, comprehending "Wh" questions and expressing conclusions (Exhibit 13). Improvements were also noted in the areas of receptive and expressive vocabulary skills, vocal intensity and social language skills. However, she had difficulty comprehending verbally presented information, and her ability to tell stories was an area of concern. The speech/language therapist noted that the student was resistant to working hard in a group. She cooperated best when playing a game, tending to complain when she had to do "real work". The student also had difficulty paying attention during language tasks. However, the speech/language therapist noted that she was able to attend more appropriately when an activity was of her choosing. She recommended that the student continue to receive speech/language therapy three times per week.

        At its annual review on June 1997, the CSE recommended that the student be placed in a special class for three periods per day, and participate in the regular education classroom for the remainder of the day during the 1997-98 school year (Exhibit 14). It further recommended that she receive speech/language therapy three times per week for 30 minutes, as her therapist had suggested.

        During the summer of 1997, the student participated in a program of instruction in language arts, mathematics, and spelling at Eagle Hill (Exhibit 15). The program also addressed handwriting skills and the development of oral communication and listening comprehension skills. The student mastered three of fifteen objectives for reading decoding. She was able to decode words that followed the consonant vowel consonant (CVC) pattern in isolated exercises, but not in context, and she required direct assistance in decoding words that followed CCVCC pattern.

        The student returned to petitioner's school for third grade in the fall of 1997. In September 1997, she completed two sections of the GE Test of Coding Skills, a test that aligns with the Orton-Gillingham (OG) methodology (Transcript p. 63). The OG program is a structured, sequential, multisensory approach to teach children language arts (Transcript p. 62). The student was able to decode 80 percent of the words that followed the CVC pattern and 15 percent of the words that followed the CCVCC pattern (Exhibit 16).

        The student was privately evaluated by a psychologist at Midchester Associates on various dates in September, October and November 1997 (Exhibit 24). The psychologist noted that the student required frequent repetition, and needed to be redirected to the task at hand because of chattiness. She opined that the student’s chattiness was a means of work avoidance, and noted that the student used a baby voice as a means of communicating her sense of inadequacy. On the Weschler Intelligence Scale for Children - III (WISC-III), the student achieved a verbal IQ score of 90, a performance IQ score of 94, and a full scale IQ score of 91, placing her in the average range of intellectual functioning. The testing revealed that the student had deficits in language, auditory processing, and verbal memory, and that her visual processing was slow.

        The psychologist reported that the student had difficulty organizing language, as well as problems with both short and long-term memory. Due to slow processing of auditory material, the student's arithmetic reasoning was also in the deficient range. The psychologist described the student's written language skills as quite poor, indicating that they were affected by her language deficits. The student also had difficulty retaining orally presented information and her rote memory was limited. The psychologist asserted that the student struggled with even the most rudimentary aspects of reading. The student confused letters, had weak phonics skills, was unable to read consonant blends or simple three letter words, and did not have sufficient decoding skills to read for meaning. The psychologist reported that her spelling was also poor.

        In assessing the student's attention and concentration, the psychologist reviewed the results of the Connors' Teacher Rating Scale completed by the student's special education and mainstream teacher. She reported that the teachers' ratings clearly indicated that the student functioned better in a small setting. In larger settings, the student evidenced considerable attention difficulties, restlessness and difficulty completing assignments. She reported that personality testing had revealed that the student was anxious about her competence and had a negative view of herself. The psychologist recommended placement in a small, structured educational setting which provided much individual instruction and a curriculum geared to language impaired students. She also recommended that the student receive intensive language therapy, and be monitored for attention difficulties.

        By letter dated December 12, 1997 to the CSE, the parents requested a meeting to review the results of the private psychological evaluation (Exhibit 17). A meeting was scheduled for January 21, 1998 (Exhibit 19). Prior to that meeting, the Test of Written Language (TOWL) was administered to the student on January 12, 1998 (Exhibit 20). Her overall writing composite score was in the below average range. In a January 20, 1998 progress report, the regular education teacher who instructed the student in science and social studies indicated that the student’s performance was satisfactory (Exhibit 22). She further reported that the student was comfortable participating in class discussions and appeared interested in the topics covered. The teacher indicated that when performing written work, the student persevered for only a limited time, required redirection when she became distracted, and required reminders to work quietly, clean her desk area and stay organized. The teacher noted that early in the year, the student had at times used an immature voice, and that she at times lacked social inhibitions. The teacher believed that the regular education classroom provided the student with appropriate models of speech, language and behavior.

        The special education teacher who instructed the student in reading, language arts and mathematics in a self-contained class for two hours per day also prepared a progress report for the CSE (Exhibit 23). She reported that the student had made slow but steady progress in reading, using a multisensory approach coupled with a literature-based program. She indicated that the student's decoding skills had improved and compared the student's scores on the GE Test of Coding Skills in September 1997 to her scores in January 1998 (Exhibit 16). The student’s ability to decode words that followed the CVC pattern improved from 80 percent in September to 96 percent in January, and her ability to decode words that followed the CCVCC pattern improved from 15 percent in September to 65 percent in January. The student was able to complete three other sections of the test in January. She decoded 80 percent of the words with the long vowel e, 20 percent of the one-syllable words ending with the soft c and g, and 16 percent of the one-syllable words with common vowel combinations.

        The special education teacher also reported that the student’s writing skills had improved, especially her ability to correctly spell common words in daily writing. However, her attention to rules of capitalization and punctuation were inconsistent. Although the student's grasp of math facts was extremely weak, she was making progress in math. The special education teacher reported that she consistently demonstrated the ability to add and subtract multidigit numbers and to successfully shift between addition and subtraction problems within a short time span. The student had also improved her ability to solve word problems. The special education teacher noted that the student was easily distracted while doing a variety of different activities, and required refocusing. She also noted that at times, the student used excuses or a baby voice to avoid tasks. She described the student as a bright girl who would manipulate a situation to avoid certain tasks, but who would rise to every challenge placed before her.

        The student’s speech/language therapist reported in January 1998 that the student was generally well motivated, but on occasion required redirection or refocusing to do tasks she perceived to be difficult (Exhibit 25). He also reported that the student's receptive and expressive language skills had improved since the initial testing in 1996, and were delayed by approximately one year. Unaware that the private psychologist had administered the Clinical Evaluation of Language Fundamentals -3 (CELF-3) to the student, the speech/language therapist used the same test with her, and reported that her total score had improved from the 4th percentile in 1996 to the 34th percentile in 1998. The speech/language therapist subsequently retested the child using the Assessing Semantic Skills Through Everyday Themes (ASSET) and reported that the student had achieved standard scores of 89 in receptive language, 96 in expressive language, and a total score of 93, which is in the 27th percentile. The speech/language therapist noted that the child's scores on the ASSET closely corresponded to the results of the tests he had administered in January. In the area of receptive language the student exhibited the most difficulty on a task assessing the ability to process and attend to verbal information. In the expressive language domain, the student had difficulty conveying specific words or ideas as well as clearly and accurately conveying messages.

        On January 21, 1998, the CSE reviewed the independent psychological evaluation, as well as the student's program and placement (Exhibit 28). The minutes from that meeting indicate that the parents expressed concern about their daughter's rate of progress and the social impact of special class placement in a mainstream setting. They requested that the CSE consider a private school placement for her. The CSE noted that the student continued to exhibit significant language and auditory processing deficits that affected her ability to learn, but recommended that her current educational program be continued. However, it amended her individualized education program (IEP) to provide for 30 minutes of counseling in a group per week to address her social needs.

        On May 10, 1998, the special education teacher reported to the CSE that the student had responded well to a structured, sequential approach to reading (Exhibit 31). She indicated that the student's sight vocabulary had increased, she was developing the ability to use context clues while reading, her reading was becoming more fluent, and her comprehension appeared to improve when reading aloud. On the post-test of the GE Test of Coding Skills, the student was able to decode 100 percent of the words that followed the CVC pattern, 90 percent of the words that followed the CCVCC pattern, 86 percent of the words with the long vowel e, 66 percent of the one syllable words ending with the soft c and g, and 44 percent of the one syllable words with common vowel combinations. She also was able to decode 80 percent of the vowel r syllables and 60 percent of the phonetically irregular words.

        The special education teacher also reported that the student had achieved a grade equivalent score of 1.7 in total reading on the Stanford Diagnostic Reading Test (SDRT). She noted that the student's performance on the test was not entirely indicative of her level of functioning in the classroom, and that the student's scores in vocabulary and reading comprehension were lower than her classroom performance. She opined that time constraints had affected the student's ability to complete the test. When given the opportunity to continue the test without time constraints, the student was able to successfully answer 70 percent of the reading comprehension questions. On the Stanford Diagnostic Math Test (SDMT), the student scored in the below average range for math computation, which her special education teacher noted was an accurate measure of her level of functioning. However, she reported that the student had made progress in both mathematical computational skills and concepts, and had created her own techniques to compensate for her weaknesses. The special education teacher described the student as an extremely apprehensive writer, creating only two to three sentences per topic. Her use of punctuation and capitalization had become more consistent. Her spelling was weak, but was improving.

        The special education teacher indicated that the student required time to process information, and much practice and repetition to reinforce information and skills. She further indicated that the student benefited when instruction was segmented and sequential with individualized attention and visual aids. The special education teacher noted that preferential seating helped to keep the student on task and moving at a reasonable pace. She also noted that the student benefited from structure and limits, and was motivated by positive reinforcement. The teacher recommended visual organizers for written work, use of models and examples and extended time to process information. She observed that the student was highly motivated when permitted to demonstrate her knowledge and understanding through the use of drama.

        The social worker who had provided group counseling to respondents’ daughter during the spring of 1998 reported that the student was becoming more aware of her strengths and weaknesses, and was comfortable talking with others about her learning differences. While the student had a tendency to speak in a baby voice at home and school, she would stop when redirected. The social worker recommended that the student continue to receive counseling during the 1998-99 school year (Exhibit 32).

        In his report to the CSE, the student’s speech/language therapist indicated that she had made a good deal of progress in her ability to use an appropriate voice with adequate vocal intensity (Exhibit 33). Her articulation had improved, and her speech had become more intelligible. Her ability to follow directions had also improved, but it continued to be an area of concern. The student also had difficulty expressing her thoughts in writing. Her speech/language therapist recommended that she receive speech/language therapy in a group three times per week during the 1998-99 school year.

        The student's regular education teacher reported that the student's performance in social studies and science were satisfactory (Exhibit 34). She participated in all classroom activities and was comfortable presenting her projects and weekly news articles in front of the class. However, she exhibited weakness in analyzing and drawing conclusions from written material. The regular education teacher noted that the student required time to complete written material, needed some material read to her, and often required assistance in organizing her written work.

        At its annual review on May 22, 1998, the CSE recommended that the student receive special education instruction for reading, math and language arts, with an additional 30 minutes per day of multisensory reading instruction during the 1998-99 school year (Exhibit 35). The student was to be mainstreamed with her fourth grade peers for science and social studies, as well as for "special" subjects such as art, music and physical education. The CSE also recommended that the student receive 60 minutes of reading instruction per day for six weeks during the summer of 1998. Her speech/language therapy was to be increased to include a 30-minute individual session each week during the school year, and she was to receive 30 minutes of counseling in a group per week. At the CSE meeting, respondents expressed concern about whether the proposed program would meet their daughter’s educational needs. They reported that a private psychologist who had evaluated their daughter had concluded that inclusion was not an appropriate educational approach for the student.

        In a report dated August 2, 1998, the private psychologist indicated that she had seen the student individually and in consultation with the student's mother for 13 sessions. Based upon her interviews with the student and the results of psychological testing, the private psychologist opined that the student was quite frustrated, anxious and sad about her ability to function in school. She opined that the student should be immersed in an environment that was focused on intensively addressing her learning difficulties. The psychologist also opined that such a setting would likely bolster her self-esteem, decrease her anxiety about her ability to learn, and afford her the experience to feel similar to her peers. She recommended that the student be placed in a full time special education program with a low teacher to pupil ratio (Exhibit 41).

        During the summer, the student received 22 hours of tutoring by a special education teacher to strengthen her phonetic decoding skills, reading comprehension and reading fluency. The Woodcock-Johnson Tests of Achievement, Form A, was administered to her at the beginning of the summer, and Form B of the tests was administered at her last tutoring session. The student’s word attack, passage comprehension, and reading vocabulary improved to grade equivalents (and percentiles) of 2.2 (23), 2.2 (10), and 2.6 (20), respectively. Her letter word identification skill decreased by one month to 1.9 (4). The tutor reported that the student's reading level was at a 2.5 grade equivalency, and that her fluency had improved at that level. She noted that the student’s sporadic completion of homework assignments had prevented her from receiving the reinforcement she needed to remember and use decoding skills (Exhibit 40).

        By letter dated June 29, 1998, the parents advised the CSE that they had decided not to accept the educational program that the CSE had recommended, and indicated that they would enroll their daughter in Eagle Hill for the 1998-99 school year (Exhibit 37). Respondents, through their attorney, requested a hearing on September 18, 1998 (Exhibit 39). The hearing began on April 9, 1999, and continued on April 13, 1999. As a result of scheduling difficulties, it reconvened on November 17, 1999. The hearing concluded on December 22, 1999.

        The hearing officer rendered his decision on May 10, 2000. He reviewed the student’s prior educational history and the test data from her school district and private evaluations. The hearing officer suggested that no firm conclusion could be drawn from the various standardized test results about the student’s rate of progress. However, he nevertheless found that by the spring of 1998, the school district had ample evidence to conclude that the student was not "benefiting sufficiently" from the inclusion programs in which she had been placed. Consequently, he also found that the CSE should not have recommended an essentially similar inclusive program for the 1998-99 school year. He also found that the recommended program did not appropriately address the student's learning style. Accordingly, the hearing officer found that petitioner had failed to prove the appropriateness of the educational program that the CSE had recommended for the 1998-99 school year. He further found that Eagle Hill had provided appropriate educational services to respondents’ daughter during that school year. He awarded tuition reimbursement for the 1998-99 school year.

        I note that while there was some confusion in the hearing officer's decision about the school year in question (see page 23), it is clear that his determination was limited to the 1998-99 school year. The Board of Education challenges the hearing officer's award of tuition reimbursement to respondents for that school year. A board of education may be required to pay for educational services obtained for a student by her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim for reimbursement (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The fact that the private school selected by the parents has not been approved by the State Education Department to provide instruction to students with disabilities, as is the case here, is not a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        The Board of Education argues that the hearing officer erred in concluding that it had not met its burden of demonstrating the appropriateness of the recommended program. It points out that after it had presented its case at the hearing, the hearing officer had indicated that it had made a prima facie showing of having offered to provide an appropriate program (Transcript p. 334). However, he explained that the term "prima facie showing" did not necessarily mean that the district had met its burden of proof as to the appropriateness of the proposed program (Transcript p. 336). Rather, he stated that the district had presented sufficient information regarding its position, and suggested that the parents proceed to present their case to him.

        An appropriate program begins with an individualized education program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The record shows and the parties agree that the student has reading, math and speech/language deficits. Having reviewed the IEP, I find that it accurately reflects the results of the evaluations to identify her needs. I also have reviewed the IEP goals and objectives because it is important to establish that they are appropriate before determining which educational services are required to afford the student a reasonable chance of achieving those goals and objectives. I find that the goals and objectives appear to be based upon the student's present levels of performance, and that they are directly related to her special educational needs.

        The central dispute in this appeal is the appropriateness of the recommended program. The record shows that for the 1998-99 school year, the CSE recommended that the student continue with her program of special classes for reading, math and language arts, and related services of small group speech/language therapy and group counseling. In addition, the CSE increased the student's speech/language therapy to include one individual 30-minute session per week focusing on development of her phonetic skills. The CSE also recommended an additional 30 minutes per day of multisensory reading during the school year, as well one hour per day of reading instruction during the summer to prevent regression in her reading skills.

        Petitioner's director of pupil personnel services testified at the hearing and described the recommended program in detail (Transcript pp. 116-120). She testified that the student would begin the day in the mainstream classroom, then she and five other students would go to a self-contained special class for math for instruction. Later in the morning, the special education students would return to the self-contained special class for reading and language arts, after which the student would receive individual OG instruction and depending on the day, individual speech/language services. In the afternoon the student would fully participate in the regular education classes, where an aide would provide support to her and the other five special education students. Two of the speech/language sessions were integrated into the regular education science and social studies classes. The third session was integrated into the student’s special education math class.

        Respondents argue that the recommended program is not appropriate for their daughter because she failed to make any measurable progress while she was receiving special education services in the district's programs. They rely on various standardized test scores which indicate that the student's reading level remained at the mid first to low second grade level despite having received special education services for almost two years. While standardized test scores can be relied upon to measure progress, I note that the student's special education teacher testified that the student's classroom performance was better than her performance on the SDRT, and that her scores were low on that test due to time constraints. When the student completed the test without time constraints, she achieved a higher score.

        I further note that the OG method was used to provide reading instruction to the student and the GE Test of Coding is an instrument used to measure the progress of a student who receives OG instruction. The results of that test show that at the beginning of the 1997-98 school year, the student was only able to complete two categories of the test. By the end of the school year, she had completed six of the nine categories tested and had mastered three of them. The student's language deficits were assessed to be in the severe range when she was first tested in 1996, and had improved to the moderate range during her third grade year. Further, the results of the ASSET show that in September 1996 the student's total score was in the fourth percentile and improved to the 27th percentile by January 1998. I cannot agree with respondents that their daughter failed to make progress in overcoming the deficits in her academic skills, or with the hearing officer’s determination that however measured, the student’s progress was insufficient.

        The parents also argue that the district's program was inappropriate because their daughter required a full-time special education setting. They rely on the private psychologists who concluded that an inclusion program was not appropriate for their daughter because she was frustrated and anxious about her academic performance, which made her feel different from her peers and resulted in a negative self-image. I note, however, that the student's teachers and related service providers who were able to assess the student's demeanor in both a special education and regular setting consistently described her as enjoying school and being comfortable about discussing her learning difficulties.

        The regular education teacher testified that she did not observe any signs of distress when the student left the regular education classroom (Transcript p. 897). She also testified that the student appeared to enjoy the science and social studies projects, was able to complete projects independently and would volunteer to read (Transcript pp. 900, 908-910). She also indicated that the student benefited from participating in regular education classes because it provided appropriate models of speech, language and behavior (Exhibit 22). The speech/language therapist described the student as appearing to be very comfortable and happy in school (Transcript p. 985). He stated that she did not appear to be stigmatized when she had to leave the classroom for speech/language services (Transcript p. 1011). The district's social worker testified that the student presented as a very happy child (Transcript p. 801). She further testified that in their sessions, the student never talked about feeling bad because she had to go to the special education classroom (Transcript p. 818).

        Petitioner is required to offer services to the child in the least restrictive environment. Before the CSE can recommend full-time primary special education instruction to a student, it must have a basis for concluding that part-time special education instruction would not be appropriate for the student. The director of pupil personnel services testified that the CSE had considered a full-time special class placement for the student. However, respondents’ daughter was successfully participating and contributing in the regular education classroom, with support. There is nothing in the record to suggest that the student’s progress in her regular education classes was trivial, or that she was not beginning to acquire the basic academic skills, notwithstanding her disability. Based upon the information before me, I find that the district has met its burden of demonstrating the appropriateness of the recommended program in the least restrictive environment (Walczak v. Florida Union Free School District, 142 F 3d 119 [2d Cir., 1998]).

        Petitioner is also required to demonstrate that it complied with the regulatory requirement to suitably group the student with other students for instructional purposes. (8 NYCRR 200.6[a][3]). Typically, a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile, i.e., a chart listing the needs of the children in accordance with the four criteria set forth in 8 NYCRR 200.1(kk). The class profile in the record shows that the students in the proposed class were intellectually functioning in the average to low average range. All of the students had reading and math deficits, and two other students had speech/language needs. A majority of them had some difficulty with their self-concept. Respondents’ daughter appeared to be functioning in the low to middle part of the group. I find that the student would have been appropriately grouped for purposes of instruction, and that petitioner complied with the regulatory requirement.

        I have considered petitioner's other claims, which I find to be without merit.

 

        THE APPEAL IS SUSTAINED.

        IT IS ORDERED THAT the hearing officer's decision is hereby annulled.

 

 

 

 

Dated: Albany, New York __________________________
September 11, 2001 FRANK MUŅOZ