Advice for School Psychologists Testifying as Expert Witnesses Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
For good or ill, law dominate SpEd
1999 Study in PSYCHOLOGY IN THE SCHOOLS: Surveyed 400 randomly-selected NASP members 38% had actually testified 25% had been listed and prepped as a witness No statically significant relations between geographic region, job location or employing agency
1999 Study in PSYCHOLOGY IN THE SCHOOLS: Time spent on the witness stand • Low of “a few minutes” • High of 8 hours • Median 1.05 hours
Time spent preparing • Low of .5 hours • High of 40 hours • Median of 7.5
Chances of School Psychs Testifying Most common issues for school psych testimony: • Assessments • Placement (parents sought more restrictive placement 67% of the time) • Services
Parents prevailed in about 1/3 of cases
Chances of School Psychs Testifying Comments: • • • •
“stressful” “Time Consuming” “anxiety-provoking” “one of the two or three worst experiences of my professional life” • Need for training in the process prior to participation
So how DO you prepare to testify?
Avoid Involvement in Custody and Domestic Disputes
Damage to school/parent relationship Damage to credibility in future due process Remember who employs you Avoid discussion of merits of domestic cases Agora Cyber Charter School, 113 LRP 34927 (2013) – Hearing impaired student – Parents in contentious divorce – School psych evaluated child
Confer with Team re Juvenile Court Involvement Balance relationship with parents and DHHS Ethical obligation re abuse/neglect Ventura Unif. Sch. Dist., 102 LRP 7624 (2000) – Student had been verified with serious emotional disturbance – Student much worse at home than at school – School psych testimony – Private therapists testimony – Hearing Officer: eligible 1999-2000, not eligible thereafter
When you are called to testify in nonschool cases Contact subpoenaing attorney • • • •
Offer records Ascertain what he/she thinks you will say Explain reluctance Ask for scheduling assistance
Strictly observe FERPA Stick to your expertise Be as “unhelpful” as ethically possible*
How to Testify as a School Psych • Chances are that you will be called as an expert witness. – Own it! – You will be matching your credibility against one or more private mental health practitioners – You know more than they do
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Review Your Data The best way to win at hearing is to be right on the facts Be sure you have collected data before making a major decision Keep that data Share the data Review it when you get called as a witness
Fresno Unif. Sch. Dist. 39 IDELR 28 (Cal. SEA 2003)
10 year old student Conflict over verification • Parents wanted ED (ODD) and OHI (ADHD) • School: not ED because doesn’t meet criteria Parents requested IEP meeting to change transportation from SpEd to regular bus • At IEP, school discussed SpEd bus behavior problems for first time
Hearing officer: School’s own data supports verification School did not collect data from home
Baltimore County Pub. Sch. 104 LRP 36668 (Md. SEA 2003)
9 year old student with PDD, OHI (anxiety disorder) and Asperger’s Syndrome Conflict over placement • Parents wanted to continue in private school • School wanted return to neighborhood school • Private therapist identified characteristics of appropriate placement
Hearing officer: School does not dispute private therapist School could not show that proposed placement had the listed characteristics
Fort Bend. Indep. Sch. Dist. 62 IDELR 231 (Md. SEA 2014)
Teenager with RAD Conflict over placement • Parents wanted school to pay $7,000 per month for out-of-state residential placement • School: didn’t know student had RAD when IEP was developed; verified ADHD • IEP offered weekly counseling with school psych along with classroom accommodations • Psych met with student once, discovered student smoked marijuana • Psych ended, referred to drug counseling
Fort Bend. Indep. Sch. Dist. 62 IDELR 231 (Md. SEA 2014)
Hearing officer: • School psych could not unilaterally discontinue IEP services • Should have continued meeting and would have discovered basis for referral to discover RAD • School psych’s notes: “student’s educational difficulties stem from marijuana-induced laziness”
Review Your Assessments Review he appropriateness and timeliness of your assessments Confirm little details of assessments Review all records in your possession Confer with members of the team to be sure of recollections
Beard v. Catahoula Parish Sch. Dist. 62 IDELR 50 (U.S. La. 2013)
7 year old student with Down syndrome Conflict over riding regular ed bus • Parents requested IEP meeting to change transportation from SpEd to regular bus • At IEP, school discussed SpEd bus behavior problems for first time
Team asked psych to conduct FBA & BIP Parents hired expert to conduct FBA & BIP Court: outside expert’s opinion more credible
Brian L. v. Twiggs County Sch. Sys. 2002 LRP 1204 (GA SEA 1991)
12 year old student with severe emotional disturbance Conflict over placement • Parents wanted student to remain in elementary school • School wanted to move to self-contained classroom in middle school • Membership of team had changed • “principal made a motion”
School psych’s testimony
Familiarize Yourself with Opposing Side’s Assessments Ask for and review all the “psychy” documents from the other side Know where you agree and disagree with the other side Be ready to explain why your assessment is as good as or better than the other side’s
Marblehead Public Schools 49 IDELR 298 (MA SEA 2008)
16 year old severe LD student Conflict over placement • Parents wanted student in private school • School wanted to integrate into regular ed with support
Parents obtained private evals School proposed IEP without implementing any of the private recommendations No competing eval from school psych
Unified Sch. Dist. No. 259 30 IDELR 1004 (SA SEA 1999)
11 year old SLD reading student Conflict over placement • Parents wanted Orton-Gillingham • School wanted to use Morphographs • School ran an Orton-Gillingham classroom
Parents obtained private evals School psych testified • Actual sample programs cited by expert were 22 years old • Read from recent article about lack of empirical data for expert’s approach
Unified Sch. Dist. No. 259 30 IDELR 1004 (SA SEA 1999)
Hearing officer • “Troubled” by school’s refusal to place child in Orton-Gillingham classroom • “In this battle of the experts I am persuaded by” the school’s school psych
A Word About the DSM-5
A Word About the DSM-5* DSM-5 (like its predecessors) does NOT provide educational classifications DSM-5 (like its predecessors) does NOT dictate what schools must do DSM-5 is NOT law DSM-5 is NOT automatically wrong, either *Wayne T. Stewart J.D, Ph.,D, LRP’s 2014 National Institute
A Word About the DSM-5* Diagnosis is data • Does not equate to services • Should not be disregarded
Prescription pad neither necessary nor sufficient for IDEA or 504 eligibility Collaboration between community & education professionals highly beneficial to student and school *Wayne T. Stewart J.D, Ph.,D, LRP’s 2014 National Institute
Resist Stepping Outside Your Competence Know what you don’t know Common sense is not expertise You are a school psych, not a career counselor, HHS caseworker, clinical psych, etc.
Elmore County Board of Ed. 438 IDELR 280 (Ala. SEA 2003)
15 year old with 31 IQ Conflict over services • Team agreed that student needed basic independent living skills • Dispute over what that curriculum looked like
School psych. recommended continuing existing preschool curriculum Parents’ expert recommended “basic survival skills”
Don’t Be Stupid Check your ego at the IEP meeting room door Always be professional Always assume you are being tape recorded
Moreno Valley (CA) Unif. Sch. Dist. 63 IDELR 233 (OCR 2013)
8th grade student with SLD and ED During an IEP meeting school psych said, “[Student] can’t spell her way out of a paper bag” Student did not attend school for several days Parents filed OCR complaint OCR: school violated section 504 when it not formally investigate the allegation of disability-based harassment
Time for a Break?
The Actual Hearing
The Actual Hearing
The Actual Hearing • Witnesses may be sequestered • Dress comfortably but professionally
The Actual Hearing
The Actual Hearing • Leave the cell phone at home or in the car
The Actual Hearing • Acknowledge differences or weaknesses • Meeting with the district’s attorney is proper • Answer the question and stop • Do not volunteer information • Good answers: “yes, ”no,” or “I don’t know”
The Actual Hearing • Be positive • Do not argue
The Actual Hearing
The Actual Hearing • Stay calm and relaxed • Establish eye contact with the decision maker, parents, or attorneys while speaking • Be yourself • Treat the parent and other lawyer respectfully
The Actual Hearing • Explain the case • Avoid using abbreviations, acronyms, and education jargon
The Actual Hearing • Listen to the entire question • Be patient
The Actual Hearing • Think before you speak • “Tell it like it is.” If you must relate profanity, preface it with something like, “These are not my words, but a direct quote from what little Timmy said to me.” • Your demeanor and presentation are important
The Actual Hearing • • • • •
Don’t guess or speculate Hearsay You can qualify your answer Objections Do not try to be funny
And Don’t Forget….
Advice for School Psychologists Testifying as Expert Witnesses Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase