Guidelines for Testifying at Impartial Hearings

Guidelines for Testifying At Impartial (Due Process) Hearings

Teachers, therapists and related service providers invariably have more than a little anxiety about testifying at impartial hearings. Although there normally will be individual variations from one case to another, there are general guidelines as to what witnesses should expect when called to testify on behalf of a child receiving instruction and/or services in school and/or privately.

Why am I being called?
Most families who enroll their child with special needs in private schools and/or centers are unable to fund their programming needs without seeking reimbursement relief from the New York City Department of Education. In order to be eligible to pursue such funding, a family needs to establish at an impartial hearing that (a) there is something materially wrong with the educational program, if any, offered by the NYCDOE and (b) the placement and services for which reimbursement are sought are “appropriate.” When teachers from the various special education private programs are asked to testify, the primary focus of the questioning is the appropriateness of the current school's programming and the nature and pace of the child's progress with such services.

What is “best” or “optimal” or “ideal” is NOT standard.
Parents are not entitled to insist on what is “best” or “optimal” for their child. “Appropriate” is the legal standard. Essentially, the core issue is whether or not a placement or service is working for the child, i.e., its demonstrable effectiveness.

Always testify from knowledge and never overstate.
There is an adage that if you tell the truth, there is very little you will need to “remember!” You should draw comfort and confidence from the fact that you are being asked to testify from matters that are within your personal knowledge and expertise. Never speculate or assume facts. Never overstate the facts. Unless you know for sure, never volunteer that some other person has knowledge of the matter you are being asked about. As a general rule, don't offer to find or retrieve things unless you are asked to do so.

Can I testify by phone?
Recent changes in New York State regulations now make it permissible to receive testimony by phone. This is a matter of expedience and convenience, but it is not necessarily the preferred way to go for the family. Just as children may learn best in a multi-sensory approach, testimony will have the greatest impact when it is delivered in person.

What should I bring to the hearing or have in front of me?
The general rule is that whatever you have in front of you when you are being questioned, either of the attorneys has the right to see it. Generally, this is not going to be an issue, where your progress reports(s), if any, already would have been disclosed to the City's representative.

What is the cadence of questioning?
Everyone has their own particular style of questioning. Some people are plodders, and take a long time to frame the question. [For you, this “latency” is a good thing—it gives you a moment to collect your thoughts.] Other people present a staccato, machine-gun type litany of questions that never seem to let up. It is important to listen to each and every question and pause for a second before answering—otherwise you can be rushed into giving an inaccurate answer you really did not intend to give. Listen to the question carefully so that you know exactly what it is that you are answering. If you don't understand the question, please say so! The hearing officer will most likely ask the questioning attorney to “rephrase.” Also, remember, if you are testifying over the phone, you have to respond in words and sentences, “uh huh” is not acceptable.

What areas will be likely be covered in questioning?

What is your educational background? What licenses do you hold? What is your prior experience in the field? How many children with autism/developmental disabilities have you worked with?
What is your position? Who do you report to? Who is your supervisor?
What services do you provide for the student? Do you have contact with the family and other therapists/teachers?
Progress reports for the student that you have authored or reviews (and the related issue of how progress is being measured.)
IEP goals and objectives you have developed or are following.
How the student best learns.
Importance of 1:1 support.
[For OT] Importance of the sensory gym.
[For SLP] Intensity of speech and language therapy, having full-time SLP in classroom, etc.
Your opinion as to whether the student is making good and meaningful progress (give examples.)
Your opinion as to the student's primary deficit areas being addressed.
Your opinion if the student is appropriately placed at his current school.
Your opinion as to whether the student needs any additional services over and above what the child is receiving at the school/center.
Whether and to what extent the child presents with ‘interfering behaviors” and how those behaviors are being addressed.
You participation, if any, in parent training and counseling (home-school, etc.)
Your participation, if any, in internal meetings regarding the student the student's progress.
Upcoming plans for the student.

What should I expect during cross examination from the City's attorney?
Put aside all thoughts of withering and humiliating cross examinations you may recall from courtroom dramas. In the first place, the City does not always send an attorney to defend the hearing—sometimes the City will send a uniformed administrator. Secondly, the attorney representing the student has the right to object to any irrelevant or abusive/argumentative questions. Third, although relevant questions are always permitted, the hearing officer will ensure that you are treated with respect. The best advice is to never loose your cool. You can always disagree, but make sure never to become disagreeable. The following, however, are areas that school district representatives/attorneys seem to gravitate to:

The intake/admissions process.
What educational records exist.
What documents you read/reviewed in preparing for your testimony.
Whether you spoke with the student's lawyer in preparing for your testimony (it is absolutely fine to say that you did, if this is the case.)
Whether and to what extent the school/center is following any IEP goals or objectives.
Whether and to what extent ABA personnel are “licensed” or “certified” in ABA (just bear in mind that in New York State , there is absolutely no requirement for ABA personnel to be certified or licensed as such—just that they have the training and expertise needed to perform appropriately.)
Extent of training and supervision.
Cost of services.
How progress is being documented.
Whether you have notes or reports that are not already part of the record.
Trying to show that the student is not making meaningful progress.
Trying to show that the school/center is somehow inappropriate.
Trying to make a big deal about any staff turnover issues.
Trying to make the case that all of the students at the school receive the same services.
Trying to get the witness to say that service levels are somehow excessive for the child [Doesn't Johnnie need some “downtime?” etc.]

In most cases, only some of the foregoing areas will be explored when you testify. Typically, unless the witness has a supervisory function, the whole examination process will likely be completed in approximately a half-hour or less. Just relax and tell it straight and you will be fine! GOOD LUCK