DISSENTING OPINION BY
JUDGE FRIEDMAN.Because I agree with the determination of the Special Education Hearing Officer (hearing officer) and the Special Education Appeals Panel (Appeals Panel) that the Delaware Valley School District (District) did not offer Daniel G. a free appropriate education program, I respectfully dissent.
I understand that, in order to provide an appropriate program, states need only offer instruction that will “benefit” the child and need not “maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.’ ” Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 189-90, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Nevertheless, unlike the majority, I cannot accept that a program must be deemed appropriate as a matter of law merely because the child “receives some educational benefit” from it. (Majority op. at 994, emphasis added.).
In this case, the hearing officer concluded that the District did not offer Daniel an appropriate program, basing that conclusion on the fact that “Daniel’s programs and placements had not afforded him meaningful progress in reading during his five instructional years from grades 2 through 6.” {See majority op. at 992.) Daniel’s test results certainly bear this out1 by demonstrating an ever widening disparity between Daniel’s grade level and his performance level over time.2 The District may not be required to maximize Daniel’s learning potential; however, I would agree that the minimal “progress” evident here certainly is not indicative of an “appropriate” education program. Thus, I would hold that the Appeals Panel did not err in determining that the District failed to satisfy its statutory obligation to provide Daniel with a free appropriate public education, and I would affirm the order requiring the District to reimburse Daniel’s parents for the cost of the private schooling that has proved so beneficial.
. Indeed, the majority here concludes that the hearing officer’s findings are supported by substantial evidence. (Majority op. at 992.)
. The Comprehensive Evaluation Report (CER) that the District conducted indicated that, at the end of 2nd grade, Daniel’s instructional level was late kindergarten to early 1st grade level. In 4th grade, Daniel was still reading at the pre-primer level, and in 5th grade, Daniel was reading at a 1.7 grade level. At the end of 6th grade, Daniel’s ability to read lay somewhere between a 1.9 and 3.3 grade equivalency.