IDEA Hearings: A Hearing Officer’s View

Published on April 6, 2010 by Jennifer Laviano

I have known of BJ Ebenstein for years, but only recently did I have the honor of getting to chat with her about the important legal issues that impact children with special education needs.  Since I have found in my Connecticut special education law practice that most parents have no idea what information is, and is not, relevant to a potential special education Impartial Hearing Officer, I was thrilled when BJ agreed to be interviewed on this subject for my blog.  I am sure you will agree with me that her answers are both frank and informative.  It is my hope that having a glimpse into the perspective of a fact-finder in IDEA Due Process Hearings might inform both parents and practitioners alike.

Barbara J. Ebenstein, Esq. is a parent and an attorney with law offices in Scarsdale, New York.  Her practice focuses on the representation of parents in special education and related matters. Barbara is an adjunct associate professor at New York University where she teaches the graduate course in Education Law.  Barbara served as a member of the Disability Policy Committee of the presidential campaign of Barack Obama, and she served as one of the surrogates speaking on disability issues on behalf of the campaign.  Barbara also serves as an impartial hearing officer in New York City and Long Island, and as a Vocational Rehabilitation hearing officer.

Barbara has extensive experience conducting CLE for attorneys and workshops for parents, advocates, school personnel, and other professionals from Hawaii to New Hampshire.  She served as the lead instructor for the New York pilot site of the SEAT Project (Special Education Advocacy Training) and she serves as an attorney skills trainer for the Council of Parent Attorneys and Advocates (COPAA).  Barbara has authored articles on special education law from the parents’ perspective for numerous national publications.  Barbara served as Chair of the Council of Parent Attorneys and Advocates (COPAA) from 2005 to 2006.

Barbara J. Ebenstein holds a J.D. from Pace University Law School, a M.A. in Education from Teachers College of Columbia University, and a B.A. cum laude from Boston University

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Laviano: As a Hearing Officer, is it useful to you to hear the background of a parent’s relationship with the school district? If so, how far back to you want to go?

Ebenstein:  No. Generally, the parent’s relationship with the school district has little relevance to the legal issues before me. I know that parents and school district personnel often want to vent in the hearing. Some hearing officers let them vent to clear the air. But I find it more helpful to limit that kind of emotional and irrelevant testimony to focus the parties on the real legal issues between them..

LavianoAre there things that you hear parents say when testifying or presenting their case that make you either especially favorable to, or particularly critical of, their position?

Ebenstein:

Favorable information:

Parental cooperation

  • The parents permitted the district to evaluate their child
  • The parents gave the district full information about the problem, the child’s disability or medical condition, or the issue;
  • The parents gave the district an opportunity to resolve the issue early by being willing to attend a resolution session, PPT meeting, or other meeting
  • Parents provide proper medical treatment for their child

Non-favorable information:

  • Home issues, other than homework, that consume the hearing
  • Anger, assigning a personal motive to school personnel who have none;
  • Focus on the process or winning more than on the child and the child’s education
  • Parents who make the case about them
  • Parents who pursue a “non-case” that will make bad case law for others

LavianoWhat are the most important things you want to know about a child in order to decide what constitutes FAPE for them?

Ebenstein: I want to know not just the child’s areas of deficit, but also the child’s strengths and interests. I want to know the child’s school performance, including academic, social, behavioral, and other factors. I also like to know what already has been successfully tried with this child, and what already has been unsuccessfully tried with this child.

LavianoHow do cases differ when parents proceed pro se? (on their own, without an attorney)

Ebenstein:  A case brought by pro se parents is completely different from a case brought by parents who are represented by experienced special education counsel. Impartial hearings have become more “legal” in nature over the last few years. They require a great deal of knowledge of a number of ever-evolving federal and state statutes, regulations, and case law. Pro se parents do not have the legal skills to present a coherent and cohesive case, organize proper evidence, cross-examine witnesses, and write a legal brief. Many parents who proceed pro se not only lose a case that they should have won, but they also establish bad case law that will hurt other families in the future. Parents have the right to proceed pro se, but I do not recommend it.

Laviano: What do you see as the most important development in special education law over the time you’ve been a Hearing Officer?

Ebenstein: The most important recent development in special education law has been the training of parents. Years ago, parents were overwhelmed and confused at IEP meetings. They had no idea about their rights or the educational needs of their children. Parents now join disability-related support groups, attend special education law workshops, and hire advocates and attorneys to advise them when necessary. Parents have become the main enforcers of special education law.

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