| Home > The Beacon, Spring 2006 |
|
Preparing to Testify at an Educational Due Process Hearing by Margaret Kay, Ed.D. Know and Understand the Law To prepare for an educational due process hearing, psychologists need to insure that they know the law. They need to take time to understand IDEA regulations, state statutes and regulations, and pertinent caselaw. It is impossible to provide testimony about what constitutes an appropriate program of education for a special needs student when the psychologist is unaware of legal requirements and legal issues. Bring All Records Psychologists need to answer all questions directly and then provide further explanation when necessary. This is most easily done under direct examination. Subject to discussions with the attorney, the psychologist may want to bring all records for the student to the hearing. Attorneys are entitled to review those documents, notes, test protocols and records which the psychologist reviews when providing testimony. If, during testimony, you open the child's file and skim through it, an attorney usually has the right to review your entire file. You may simply want to take on item out of the file, place the file back on the floor, under your chair, then review the document in question. Know the Positions of Both Sides A good presentation on both direct and cross-examination requires a thorough understanding of the parents' and the school district's positions on the issues. The psychologist should be completely familiar with the child's educational record and history including the child's IEP and why the child's program and /or placement are being disputed. The psychologist needs to be prepared for cross-examination. The purpose of the cross-examination is to secure testimony from you that will damage the other party's case. Long winded explanations are often inappropriate. Discuss cross-examination with the attorney prior to the hearing. Attorneys at times behave in an intimidating fashion and may question the psychologist's credibility as an expert. The psychologist needs to be honest about his/her credentials and the ability to provide meaningful testimony and input into the hearing process. The professionalism of the psychologist is on trial during an educational due process hearing. Psychologists need to maintain composure and avoid becoming aggressive. You should have a professional appearance during the hearing. Remember, there is only one person in the room that needs to be impressed with your testimony - the hearing officer. You should look the Hearing Officer, Administrative Law Judge, or other official that is hearing the evidence, in the eye. You want to develop rapport with that person. The hearing officer may be an educator or an attorney. If the hearing officer is an attorney, the hearing may take a more legalistic approach, similar to a trial. Furthermore, if the hearing officer is not an educator, the hearing officer may need to have educational issues explained in layman terms. It is important for psychologists to testify in language that is easily understood by attorneys and the hearing officer. The "Best" or "Most Appropriate" Recommendation is Fatal! Psychologists also need to be aware that although all parents want what is best for their children, the use of the word "best" is often the "kiss of death" in special education due process litigation. Rather the determination of what constitutes an "appropriate" program and placement should be described to the hearing officer by the testifying psychologist. Never use the "best" or "most appropriate" in your reports and testimony. Instead, explain that if your recommended appropriate program is not offered, the child can expect to be damaged and explain the nature and impact of such damage. Relating Test Findings to Standards for Special Education When interpreting psychoeducational test results, the examiner needs to relate test findings to State and Federal Standards for Special Education. Does the child present with indicators of speech and language dysfunction, autism, pervasive developmental disorder, mental retardation or emotional disturbance? It is important in this section of the report for psychologists to tie in evaluation data to the standards of eligibility for special education. Creating the IEP Blueprint The psychoeducational evaluation contains a synthesis of observational data, test results, test interpretation and findings of strength and need, which are important to development of the multidisciplinary evaluation report and the construction of the child's individualized educational program (IEP). The psychoeducational evaluation generally serves as a blueprint for the creation of the child's IEP. For example, a child with a language-based learning disorder of the dyslexic type who evidences a severe discrepancy between ability and achievement in reading decoding, spelling and written expression requires specially-designed instruction to improve functional literacy skills. The psychologist performing the evaluation should not only provide information regarding the child's diagnosis, but should also provide recommendations for intervention. For example, the psychologist may indicate the following within the psychoeducational evaluation report: "This student displays a severe discrepancy between ability and achievement in the areas of basic reading skill and written expression. Comprehension problems in reading result from decoding insufficiencies, slow word-by-word reading and an inability to phonetically decode words which are not stored in sight word memory." "This student also demonstrates a severe discrepancy between ability and achievement in spelling. The inability to spell and to retain the correct memory of spelling words interferes with the child's ability to complete written work assignments for school. "This student requires a replacement reading and spelling program using a synthetic, phonetic, code emphasis approach." This section of the report also includes information regarding the child's ability to read grade level textbooks. Specially-designed instruction revolves around use of a synthetic, phonetic, code emphasis approach as a replacement reading/spelling program. For example, if the Word Identification and Word Attack subtests of the Woodcock-Johnson Psycho-Educational Battery-Revised (Form A) were used to ascertain the child's present levels of academic achievement, Form B from this test could be re-administered after six months of specially-designed instruction to determine if the child is making a "reasonable degree of educational progress". Using Evaluation Data as a Baseline for Measuring Progress Present levels of functioning within a psychoeducational evaluation represent a baseline of how the child is performing academically at the present time. Once an IEP has been constructed and specially-designed instruction provided, this data can serve as an important baseline against which to objectively measure the child's progress. Many IEP's provide evaluation criteria, which are wholly subjective rather than objective and measurable. The child's report card grades, "teacher observations" and "teacher checklists" are insufficient to objectively track the child's progress with specially designed instruction over time. It is useful to provide baseline testing using norm-referenced achievement test measures, which have alternate forms. This eliminates problems associated with practice effect for repeated test measures. When norm-referenced tests are given repeatedly, practice effect can distort the child's test scores and make the child appear to be doing much better than is actually true. Therefore, whenever possible, psychologists should use standardized academic achievement tests which have alternate test forms that can be used to eliminate problems associated with practice effect.
In Summary Educational and school psychologists are uniquely trained to conduct psychoeducational evaluations for school age children and to provide important information regarding the best practice guidelines for meeting the disabled child's needs through specially-designed instruction. Educational and school psychologists are often relied upon by school districts, parents or the courts to provide expert witness opinion and testimony in educational due process proceedings. Psychoeducational evaluation and the ability to provide expert witness testimony are critically important to meeting the needs of children who require special education services. Psychologists who are well trained, current in their knowledge of special education research, aware of best-practice guidelines for assessment and intervention, and who conduct comprehensive, reasoned "process assessment" are invaluable to the process of obtaining appropriate educational programs and placements for special needs children. About Margaret Kay, Ed.D. Margaret J. Kay, Ed.D., NCSP, DABPS, has been employed as a private practice psychologist in Lancaster, Pennsylvania since 1980. Areas of specialization include: ·
Educational and school psychology Dr. Kay has been relied upon by parents, schools, physicians, colleges, educational counselors, mental health agencies and vocational rehabilitation specialists to provide comprehensive psychoeducational evaluations for children and adults. Dr. Kay has testified as an expert witness in State and Federal educational due process hearings and is frequently retained by parents and schools to perform Independent Educational Evaluations (IEE's). Disabilities served include: ·
Attention Deficit Hyperactivity Disorder (ADHD) In addition to her work in educational psychology and child Neuropsychology, Dr. Kay and her staff provide a variety of related professional psychological and educational services including: ·
Psychotherapy for children, adolescents & adults Contact Information: Margaret
J. Kay, Ed.D., Psychologist
Copyright © 1999-2025, Peter W. D. Wright and Pamela Darr Wright. All rights reserved. Contact Us |
