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V.M. Ex Rel. Bm. v. Sparta Township Board of Education

United States District Court, D. New Jersey

July 3, 2014



KEVIN MCNULTY, District Judge.

Plaintiff V.M. filed this lawsuit on behalf of her son, B.M., against the Sparta Township Board of Education (hereinafter, "Sparta"). B.M. allegedly suffers from dyslexia, attention deficit hyperactivity disorder, and deficits in his ability to read, write, and calculate. In July 2009, Sparta determined that B.M. was not eligible for special education services, finding that he was not a child with a disability. V.M. appealed that determination to the New Jersey Department of Education. After eight days of hearings, an Administrative Law Judge upheld Sparta's determination. V.M. then brought this suit pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(2), seeking to overturn the denial by Sparta, as upheld by the ALJ.

V.M. asserts here that B.M. has a specific learning disability (SLD) or other health impairment that entitles him to special education services at public expense. Sparta's erroneous decision, she contends, flowed from a flawed procedure: specifically, Sparta's failure to consider factors that must be considered under IDEA and its federal and state implementing regulations.

The circumstances are unfortunate. It appears that, in evaluating B.M., well-intentioned professionals gathered a wide range of information, and I do not fault their efforts. Sparta's protocol for deciding whether B.M. had a disability, however, effectively set aside the results of that investigation. Sparta found B.M. ineligible based upon a single formula, to the exclusion of other factors that it was legally required to consider. That was a violation of the decisional procedures and methods prescribed by IDEA and its implementing regulations, both federal and state. An ALJ, affirming the local decision, addressed the facts, but did not address the error in Sparta's decisional methodology. The ALJ's decision-essentially, upholding Sparta's decision because it complied with Sparta's flawed decisional protocol- did not get at the root of the problem.

It is not impossible that Sparta, if it had properly considered all of the relevant factors, could have permissibly reached the same result. I am, however, constrained by law to find that it erred as a matter of law in deciding in the manner that it did. I will, however, request that the parties submit additional briefing on the remedies for such a violation, after appropriate discovery, as explained further in Part V of this opinion.


A. The IDEA Statute

IDEA's purpose is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designated to meet their unique needs and prepare them for further education, employment, and independent living[.]" 20 U.S.C. § 1400(d)(1)(A). States have an obligation to ensure that children with disabilities receive a "free appropriate public education, or "FAPE, " 20 U.S.C. § 1412(a)(1), in the form of special education "provided at public expense, under public supervision and direction." 20 U.S.C. § 1401(8). Such special education will be provided "in conformity with the individualized education program required under Section 1414(d) of this title." Id.

A "child with a disability" is a "child [] with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness)... other health impairments, or specific learning disabilities, and [] who, by reason thereof, needs special education and related services." Id. at 1401(3) (emphasis added).

A specific learning disability (or SLD) is "a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, read, write, spell, or do mathematical calculations...includ[ing] perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and development aphasia." Id. at 1401(30); N.J.A.C. § 6A:14-3.5(c)(12).

B. The Eligibility Determination Process Under IDEA

Under the IDEA, the eligibility determination process has two essential stages: (1) the evaluations and written reports, and (2) the eligibility determination meeting.

1. Evaluations and written reports

IDEA requires local education agencies (typically, school boards) to conduct "full and individual evaluation[s]" consisting of procedures "to determine whether a child is a child with a disability." 20 U.S.C. § 1414(a)(1)(2). These should include reevaluations as changing circumstances warrant. Id.

"In conducting the evaluation, the local educational agency shall [] use a variety of assessment tools and strategies to gather relevant functional, development, and academic information, including information provided by the parent, that may assist in determining [] whether the child is a child with a disability, " and shall "not use any single measure of assessment as the sole criterion for determining whether a child is a child with a disability. Id. at § 1414(b)(2); 34 C.F.R. § 300.304(b)(1)-(2). In other words, IDEA requires that evaluation be multi-faceted and multi-disciplinary, and the process must include input from the parents.

A state "may fashion its own procedures" for evaluating disability, so long as it satisfies IDEA's requirements. Shore Regional H.S. Bd. of Ed. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004). In New Jersey, local school districts assemble a Child Study Team (CST), which "shall include a school psychologist, a learning disabilities teacher-consultant and a school social worker." N.J.A.C. § 6A:14-3.1(b). The CST, along with properly licensed specialists in the area of disability (as appropriate), id. at § 6A:14-3.1(c), participate as team members in both the evaluation of potentially eligible students and in the actual eligibility determination, id. at § 6A:14-3.1(d). A parent or knowledgeable regular education teacher may assist the CST in determining what data it should obtain and which specialists should conduct assessments in the evaluation, and they may participate in the eligibility determination meeting. ( See Section I.B.2, infra. ) They are not, however, part of the CST. See id. at § 6A:14-3.4(a).

Each evaluation must "[i]nclude a functional assessment of academic performance and, where appropriate, a functional behavioral assessment [and/or] assessment of the student's communication needs[.]" Id. at § 6A:14-3.4(f)(4). All standardized tests used for the evaluation must be "individually administered, " "valid and reliable, " "normed on a representative population, " and "scored as either standard score with standard deviation or norm referenced scores with a cutoff score." Id. at § 6A:14-3.4(f)(3). In addition, at least one evaluator "shall observe the student's academic performance in the general education classroom"; shall interview the student's parent; shall interview the teacher(s) referring the student; shall "review [] the student's developmental/educational history including records and interviews"; shall review "interventions documented by the classroom teacher(s) and others who work with the student"; and shall utilize "[o]ne or more informal measure(s) which may include, but not be limited to, surveys and inventories; analysis of work; trial teaching; self-report; criterion referenced tests; curriculum based assessment; and informal rating scales." Id. at § 6A:14-3.4(f)(4)(i)-(vi). See also 34 CFR § 300.310(a) (requiring observation in classroom).

The child's parent(s) may submit reports and assessments from professionals in private practice or from certain other third parties. N.J.A.C. § 6A:14-3.4(i). Each such report must be "reviewed and considered by the child study team member or related services provider with relevant knowledge or expertise." Id. In addition, the CST may treat any such report "as [fulfilling] a required assessment, if the assessment has been conducted within one year of the evaluation and the child study team determines the report and assessment meet the requirements of (h) above." In other words, the CST must consider any assessment submitted by parents, and may adopt such an assessment as its own.

Upon completing its evaluation, the CST must prepare "[a] written report of the results of each assessment." Id. at § 6A:14-3.4(h)(1). The report may be produced "collaboratively by the evaluators, " or compiled from the evaluators' individual written reports of their assessments.[1] Id. "Each written report shall be dated and signed by the individual(s) who conducted the assessment and shall include: 1. An appraisal of the student's current functioning and an analysis of instructional implication(s) appropriate to the professional discipline of the evaluator; 2. A statement regarding relevant behavior of the student, either reported or observed and the relationship of that behavior to the student's academic functioning; [and] 3. If an assessment is not conducted under standard conditions, the extent to which it varied from standard conditions." Id. at § 6A:14-3.4(h)(1)-(3).

2. Determination of eligibility in writing

Once the evaluation of the student is complete, the school district is to convene a meeting to determine whether the student is eligible for special education. Id. at § 6A:14-3.5(a). At this meeting, eligibility is to "be determined collaboratively" by the parent, a teacher "knowledgeable about the student's educational performance" (or knowledgeable about the district's programs, if there are no such teachers), the student (where appropriate), at least one CST member who participated in the evaluation, the case manager, and other appropriate individuals at the discretion of the parent or school district (collectively, "Eligibility Meeting Participants"). Id .; id. at § 6A:14-2.3(k)(1). See also 34 C.F.R. § 300.306(a)(1).

In determining eligibility and educational need, the school district's interpretation of evaluation data "must [] draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior, " and must "ensure that information obtained from all of these sources is documented and carefully considered." 34 C.F.R. § 300.306(c) (emphasis added). Thus, federal regulations require school districts to draw upon a wide range of the data collected in its evaluation, documenting and carefully considering the data in arriving at its eligibility determination.

New Jersey's regulations go one step farther, providing that "[c]lassification shall be based on all assessments conducted including assessment by child study team members and assessment by other specialists as specified below." N.J.A.C. § 6A:14-3.5(c) (emphasis added).

The school district must determine a student eligible for special education if its Eligibility Meeting Participants find that the student meets the classifications for one or more of the fourteen disabilities set forth in N.J.A.C. § 6A:14-3.5(c), which include autism, communication impaired, specific learning disability (SLD), and other health impaired. Id.

To classify a student as having a SLD, the Eligibility Meeting Participants must find that a student has "a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and development aphasia." Id. at § 6A:14-3.5(c)(12).

New Jersey's regulations set forth two methods for the Eligibility Meeting Participants to find the disorder constituting an SLD. The first is the severe discrepancy' approach, by which the participants determine whether there is a "severe discrepancy [] between the student's current achievement and intellectual ability in one or more of [] (1) Basic reading skills; (2) Reading comprehension; (3) Oral expression; (4) Listening comprehension; (5) Mathematical calculation; (6) Mathematical problem solving; (7) written expression; and (8) Reading fluency." Id. at § 6A:14-3.5(c)(12)(i). Alternatively, the participants may also "utilize[e] a response to scientifically based interventions methodology as described in N.J.A.C. 6A:14-3.4(h)6." Id. at § 6A:14-3.5(c)(12)(ii).[2] Here, Sparta opted for the severe discrepancy' method set forth in subsection 12(i) of the regulation.

If a school district uses the severe discrepancy approach, New Jersey regulation requires it to "adopt procedures that utilize a statistical formula and criteria for determining severe discrepancy." Id. at § 6A:14-3.5(c)(12)(iv); see also 34 C.F.R. § 300.307(b)(requiring districts to "use the State criteria adopted pursuant to paragraph (a) of this section in determining whether a child has a [SLD]"); but cf. id. at § 300.309(a)(1)-(2)(setting forth broader criteria for finding an SLD and omitting any reference to the severe discrepancy approach).

Thus, a district may lawfully employ the severe discrepancy method. If it does, must use a statistical formula. The question is whether such a formula may be the sole determinant in classifying a student as SLD or not.

Whatever the methodology, however, the school district must, upon rendering a SLD classification determination, document particular findings in writing. N.J.A.C. § 6A:14-3.4(h)(4) provides: "[T]he documentation of the determination of eligibility shall include a statement of: i. Whether the student has a specific learning disability; ii. The basis for making the determination; iii. The relevant behavior noted during the observation; iv. The relationship of that behavior to the student's academic performance; v. Educationally relevant medical findings, if any; vi. If a severe discrepancy methodology is utilized, whether there is a severe discrepancy between achievement and ability that is not correctable without special education and related services; vii. The determination concerning the effects of environmental, cultural or economic disadvantage; viii. Whether the student achieves commensurate with his or her age; ix. If a response to scientifically based interventions methodology is utilized, the instructional strategies utilized and the student-centered data collected with respect to the student; and x. Whether there are strengths or weaknesses, or both, in performance or achievement relative to intellectual development in one of the following areas that require special education and related services: (1) Oral expression; (2) Listening comprehension; (3) Written expression; (4) Basic reading skill; (5) Reading fluency skills; (6) Reading comprehension; (7) Mathematics calculation; and (8) Mathematics problem solving."

C. Challenging Adverse Determinations Before Administrative Agency, and the Right to Sue in Federal Court

"The IDEA establishes a private cause of action against a school district that fails to abide by its legal obligations. The parent or guardian of a minor student who is denied the rights and procedures set forth in the IDEA is afforded the opportunity to file an administrative complaint and to appeal an adverse determination to a federal district court." C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 66-67 (3d Cir. 2010) (citing 20 U.S.C. §§ 1415(b)(6), (i)(2)).

A parent dissatisfied with a district's determination, including a parent who has unilaterally placed the child in a different school, may "present a complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, " 20 U.S.C. § 1415(b)(6), and be heard in "an impartial due process hearing, which shall be conducted by the State educational agency." See 20 U.S.C. § 1415(f)(1)(A); Thus, a parent may challenge the district's determination, and the procedures utilized by the district, in an administrative proceeding. See id.; see also N.J.A.C. § 6A:14-2.7. If aggrieved by the decision of the administrative court, the parent(s)may then bring an action "with respect to the complaint presented pursuant to this any State court of competent jurisdiction or in a district court of the United States." 20 U.S.C. § 1415(i)(2); Shore, 381 F.3d at 198-199. The aggrieved parent(s) may thus bring a cause of action based on the same complaint they brought before an administrative court concerning, for example, the district's determination or procedure utilized, receiving a "modified de novo" review based on the administrative record plus any additional evidence adduced before the court. See, e.g., Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 757-758 (3d Cir. 1995); see also 20 U.S.C. § 1415(i)(2)(C).


A. Procedural Background

In the spring of 2007, B.M. was in the second grade. Sparta, at the request of B.M.'s teacher, developed an Intervention and Referral Services Program ("I&RS") for B.M., because his progress in reading, math, and writing was falling short of his potential.[3] (First Amended Complaint ("FAC") at ¶ 10). B.M.'s teacher, however, informed Sparta that B.M.'s progress remained unsatisfactory. ( Id. at ¶11). Thus, in June 2007, Sparta commenced an evaluation of B.M.'s eligibility for special education and related services. In September 2007, it found him eligible for special education. Specifically, Sparta found him "Eligible for Speech and Language Services" due to "decoding and encoding issues." ( Id. at ¶ 19). Sparta provided B.M. special speech and language services, pursuant to an individualized education plan (IEP), through third and most of the fourth grade. ( Id. at ¶26).

In 2009, the period on which this case focuses, B.M. was 10 years old, a fourth grader in the Sparta public school system. It is alleged that he then had disorders in reading, written expression, and mathematics, and has been diagnosed with dyslexia and attention deficit hyperactivity disorder. ( Id. at TT 5-6).

I particularly note that these disorders in attention or processing do not imply a lack of mental capacity. B.M. "is very bright and has the potential to make progress educationally commensurate [with] his grade and age level." ( Id. at 9).

In the spring of 2009, Sparta reevaluated B.M. ( Id. at 50). In July 2009, Sparta removed B.M.'s classification, finding him to be no longer "Eligible for Speech and Language Services." ( Id. at ¶ 65). It also determined that he was not "Specific Learning Disabled" or "Other Health Impaired." ( Id. ). Sparta acknowledged B.M.'s learning issues, however; it undertook to address those issues through an MRS program rather than through special education. ( Id. at ¶ 66). This lawsuit focuses on the bases for Sparta's determination that B.M. was not "Specific Learning Disabled" as of July 2009.

Following that determination, V.M. filed a petition against Sparta with the New Jersey Department of Education's Office of Special Education Programs. ( Id. at ¶ 85). As of November 2009, having failed to persuade Sparta to reconsider its non-eligibility determination, V.M. enrolled B.M. in The Craig School, a private school for children with learning disabilities. ( Id. at ¶ 79).

After a failed attempt to resolve V.M.'s petition in mediation, the Office of Special Education transmitted V.M.'s administrative action to the New Jersey Office of Administrative Law. ( Id. at 86). There, Administrative Law Judge (ALJ) Barry E. Moscowitz conducted an evidentiary hearing on eight days in 2010. On November 16, 2011, Judge Moscowitz issued a final decision in favor of Sparta. (Final Decision of AU, 2011 WL 6013465 (N.J. Adm.)).

V.M. filed this action on February 14, 2012, and amended her Complaint on May 18, 2012. V.M. demands a judgment: (1) compelling Sparta to find B.M. eligible for special education, (2) compelling Sparta to reimburse all of the costs incurred to place B.M. at the Craig School, (3) awarding B.M. "compensatory education, " (4) compelling Sparta to prospectively fund all of the costs of B.M. remaining at the Craig School, and (5) compelling Sparta to prepare an IEP which stated that B.M.'s now-current educational placement is at the Craig School. ( See Complaint, Doc. No. 1 at p. 20).

The parties agreed to proceed without discovery, and set a date by which they would file motions for summary judgment. ( See Fourth Consent Order Amending Pretrial Scheduling Order [ECF No. 24]). On December 13, 2012, Sparta moved and V.M. cross-moved for summary judgment. [ECF Nos. 25-26]. Each motion has since been fully briefed, with comprehensive references to the parties' joint appendix [ECF No. 13] containing a transcript of the administrative hearing and all of the documents constituting the administrative record. Finally, on March 12, 2014, I convened oral argument on the pending motions. [ECF No. 33].

B. The Parties' Contentions In These Summary Judgment Motions

V.M. argues that the evidence adduced before the ALJ demonstrates that, in determining that B.M. was not eligible as "Specific Learning Disabled, " Sparta impermissibly relied solely on a statistical formula. Although that procedure complied with Sparta's local policy, it allegedly did not comply with the overriding mandate of IDEA and its implementing regulations. According to V.M., this shortcoming, overlooked by the ALJ, constitutes a violation of the IDEA. (FAC at ¶ 95; Br. Supp. Mot. Summ. J. at 34, 37-38). Relatedly, V.M. contends that Sparta's 2009 evaluation did not include a formal classroom evaluation (Pltf's Statement of Material Facts ("SMF") at ¶ 13), and that Sparta does not consider teacher observations about a child or other indicia of classroom performance for purposes of determining eligibility ( id. at TT 14-15).[4]

Not so, says Sparta. Far from confining itself to a mathematical formula, it "used multiple assessment measures within its severe discrepancy model, multiple forms of B.M.'s functional performance as well as verbal and written input from B.M.'s teachers, IEP team members, V.M.'s experts and even V.M. herself when it determined whether B.M. was eligible for services under the classification category of SLD." (Def.'s Br. Opp. Pltf's Mot. Summ. J. at 8-9); The 2009 evaluation, Sparta contends, did include classroom observation-as part of Lucille Anderson's educational assessment (Resp. to Pltf's SMF at ¶ 13); this was, it says, a "gauge [of] performance" by B.M.'s classroom teacher ( id. at ¶ 15). Sparta thus argues that it did not violate IDEA and regulations.


Most critical to the Court's resolution of these motions is an examination of the record created before the ALJ. The ALJ conducted a hearing over eight non-consecutive days in April through September, 2010, to determine the following issue: "Should B.M. have been classified as having a specific learning disability (SLD)?" (ALA Opinion, 2011 WL 6013465 at Statement of the Case). The ALJ determined: "No. In Sparta, an SLD is determined when, among other factors, a minimum of 1.5 standard deviations exist between achievement and ability." (Id.). At the hearing, testimony was heard from some 14 witnesses, including Sparta employees who worked on B.M.'s case, experts, and V.M. herself.

A. The CST Investigation

At the administrative hearing, it was established that Sparta's CST commenced a reevaluation of B.M. on or around May 4, 2009. ( See id. at Findings of Fact, Part II at Fourth Grade, Section B). CST members thereafter conducted a new social assessment, speech and language assessment, educational evaluation, occupational therapy evaluation, and neurological evaluation. The ALJ's opinion summarizes each of these evaluations. ( See id. at Sections B-C). Many of the witnesses, particularly those who were CST members, discussed the assessments in depth in their testimony, pertinent aspects of which are set forth in section III.C, infra.

B. Sparta's Eligibility Determination Report for B.M.

The CST's evaluation was followed by a July 2, 2009 eligibility meeting, at which Sparta's IEP Team decided whether B.M. should be classified as having any type of disability. ( See id. at Section D). Indeed, as set forth supra at Section II.B, a school district, upon completion of its CST's evaluation, is to convene its Eligibility Meeting Participants (which Sparta apparently refers to as its "IEP Team") to determine he pupil's eligibility and document that determination in a written report. See N.J.A.C. § 6A:14-3.5(a). Sparta thus proceeded to this second step in the two-step determination process, its CST giving way to its IEP team.[5] I note that some individuals served on both teams.

Sparta's IEP team consisted of Linda Cooper (Sparta's Director of Special Services), Lorise Goeke (Principal of Helen Morgan School), Meghan Marencik (Sparta's Occupational Therapist), Cheryl O'Keefe (School Psychologist appearing a representative of Sparta), Susan Lorentz (a second School Psychologist also appearing as a representative of Sparta), Judy Hart (the CST Case Manager), Lucille Anderson (as Child Study Team member), Margaret Milligan (a special education teacher), D. Smulewicz (a general education teacher), and C. Mangiaracina (a social worker). (Eligibility Meeting Participants' Sign-In, Ex. R-19 at Ja436-437). Sparta's district counsel, Rodney Hara, was also present at the Eligibility Meeting, while V.M. and her attorney did not exercise their right to attend. (Id.).

The IEP prepared its "Eligibility Determination Report" for B.M.. Such a report is required. It must state the district's reasoning for a finding that a pupil is or is not eligible for special education. See N.J.A.C. § 6A:14-3.4(h)(1)(4); supra at I.B.1. The report concerning B.M. has two sections-first, a lengthy "Collaborative Evaluation Summary, " and second, a brief "Statement of Eligibility." ( See Report, Ex. R-19 at Ja438-41).

The "Collaborative Evaluation Summary" describes the various observations and test results of the CST members who analyzed B.M. In evaluating B.M., it appears that the team members gathered a variety of data. The Summary includes observations from a psychological evaluation, achievement tests, and a social assessment, in addition to teacher input. ( Id. at Ja438).

The "Statement of Eligibility" section of the Report comprises a single paragraph. It states:

The IEP team met and has concluded that [B.M.] does not meet eligibility requirements for special education and related services at this time. Consideration was given to the following classification categories: Communication Impaired, Specific Learning Disability, Eligible for Speech-Language Services, and Other Health Impaired. [B.M.] does not meet criteria for Communication Impaired. [B.M.]'s speech-language testing is currently consistent with the language testing of one year ago, with receptive and expressive language scores generally within the average range. There are not two measures below 1.5 standard deviations, or the 10%ile. [B.M.] does not meet criteria for specific learning disability because there is not a severe discrepancy between current achievement and intellectual abilities in one or more of the prescribed areas. [B.M.] does not meet criteria for Other Health Impaired because he has not been medically diagnosed by Dr. Patel with a chronic or acute health problem, which requires special education and related services. [B.M.] no longer meets eligibility criteria for speech-language services due to significant progress in phonemic areas that place him above the 10%ile on formal measures. The CST recognizes that working memory and organizational issues are concerns for [B.M.]'s education success, and that those issues can be addressed through regular education channels. Referral to general education I&RS committee is recommended.

( Id. at Ja440-41 (emphasis added)). This terse eligibility determination does not state that the team's decision is based on anything other than the formula. ( See id.).

The ALJ, properly in my view, did not take this short statement at face value. He permitted the parties to develop the record concerning the underlying basis for the Eligibility Determination, and the method for arriving at it.

C. Testimony of Sparta Officials Before the A.14

1. Judy Hart, CST Case Manager

Judy Hart, a speech language specialist employed by Sparta, was the case manager on B.M.'s eligibility determination. She participated in the July 2, 2009 eligibility meeting. (Id.).

On direct examination, Hart made it clear that the participants in the eligibility conference used the severe discrepancy model in determining whether B.M. had a SLD.[6] (Ja708-10). That severe discrepancy model, she said, constitutes the "eligibility criteria for specific learning disability." (Ja709). In response to a question by Judge Moscowitz, she stated that the IEP's decision was consistent with the Sparta Procedure. (Ja808-809). Hart described how the district's statistical formula works. One input is the student's IQ score. (For B.M., Sparta ran the formula using two different IQ scores obtained by Dr. Kristin Sharma: B.M.'s December 2008 "full score IQ, "[7] and B.M.'s "general abilities index [GAI][8] IQ" scores). The other input is the student's achievement score from the Woodcock-Johnson test. (Ja806). These scores are meant to illustrate a student's aptitude and a student's actual achievement, so that the discrepancy between them may be analyzed. (Id.). No combination of B.M.'s scores rendered him eligible under the statistical severe discrepancy formula. Oddly, however, the IEP did not report any of the scores in its Eligibility Determination Report. (Ja785, 810).

On cross-examination, Hart was asked about the Eligibility Determination Report. The Collaborative Evaluation Summary section of the Report, she testified, contained summaries of each CST member's evaluation of B.M., including evaluations by multiple teachers. (Ja783). The Statement of Eligibility section, she confirmed, reflects that the severe discrepancy formula was the only basis for Sparta's determination of eligibility. pa 784-786).

Hart was also probed about how a student's achievement score is obtained. The Woodcock-Johnson achievement score, she explained, is a composite score blending the results of a variety of tests on different subject matters. Thus a student may be very weak in certain subjects, but if he does well enough in other subjects, his poorer scores may have no independent significance in the discrepancy analysis. ( See Ja794-96).

Overall, Hart's testimony indicates that Sparta, in determining B.M.'s eligibility, based its SLD classification decision solely on whether there was a sufficient statistical discrepancy between achievement and aptitude, according to a set formula.

2. Lucille Anderson, CST member

Lucille Anderson, a learning consultant for Sparta, was a member of the CST who participated in the July 2009 eligibility meeting. ( See Eligibility Meeting Participants, Ex. R-19 at Ja436). She testified before the ALJ that in June 2009, around the time that B.M. completed the fourth grade, she conducted and summarized in writing an educational evaluation of B.M. That evaluation included classroom observations, review of records, informal assessments, and the Woodcock-Johnson III ("W-J III") tests of achievement. ( See Testimony of Anderson, Ja860-878; Educational Evaluation, Exhibit R-28, Ja506-520).

Anderson described her in-class observation and informal assessment, (Ja881-882), as well as her evaluative conclusions about B.M. (Ja883-886). She reviewed certain "records"-report cards and certain other documents-but conceded that she did not address them in her written evaluation. (Ja903). She stated that she reviewed those records "just to get a feel for where the student is and where they're-you know, a basic understanding of what the teacher's concerns are." (Ja904). She explained that she did not discuss B.M.'s records in her written evaluation because such records "do[] not equate to any eligibility. The report that I write is written for the sole purposes of eligibility for services." (Id.; see also Ja929-930 ("[Report cards] give[] you a global idea of where the teacher is seeing a weakness...It's not [relevant] in some respects because the educational evaluation is to determine the eligibility. So, a core of tests needs to be given to meet the code...Any information beyond eligibility would just be to assist the teacher"). Her written evaluation dealt solely with the results of the W-J III tests.

Similarly, on cross examination Anderson admitted:

Q....did you note your classroom observation anywhere ...

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