The autism pandemic now affects between 1-in-44 and 1-in-35 children by the age of 8, according to a December 2021 Rutgers report—a rate that has climbed some 241% since 2000.
And one of the big ways this affects the millions of families raising children with autism is obtaining and fulfilling IEPs—Individualized Education Programs.
Special-education law attorney Tim Adams represents families to get their children the educational support they need. And because districts often have more legal support than financial support, these issues often wind up in court.
And while petitioners may be entitled to recover their attorney fees, surprisingly they are not entitled to their expert costs. This rule (an oversight?) tips the scales sharply against families and could be easily fixed by Congress.
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Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
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Welcome, everyone. I am Jeff Lewis.
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And I'm Tim Kowal. The California appellate law podcast is a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists, but we split our practices about even between trial and appellate courts. My wife tells me that makes us attack librarians so we try to bring that perspective and some legal news that our listeners will find useful in their legal practice.
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Tim Kowal 1:01
All right. You know, Jeff, one of the topics that we discuss often on this podcast is the impact that the COVID pandemic has had on legal culture, but I was noted recently a stat about the autism pandemic and how it now affects between one and 44 and 135 children by the age of eight years old. According to a December 2021 records report, the autism rate and callate in America has climbed some 241% Since 2001 of the big ways that this affects the millions of families raising children with autism is an obtaining and fulfilling ie peas. That's an individual Individualized Education Program. And so I thought it'd be it'd be great to have a special education lawyer to come on the show and talk to our audience about these kinds of special education issues in the law. So today we welcome Tim Adams to the show. Tim Adams is an attorney focusing on education, law, and especially special education, law and advocacy. He has served as an adjunct Professor and Associate Director of the special education advocacy clinic at Pepperdine University School of Law. He is actively involved in educating parents and professionals in presentations and seminars. He's also trained Orange County Superior Court judges regarding special education law. He's been interviewed and quoted in publications including daily journal, Orange County Register and the nationally published magazine parenting. Tim is an ambassador for the autism community in action, an organization that provides support for families living with autism, and he served as an auxiliary board member for the University of California Irvine Child Development School, and was a founding board member of its successor, the children's school, and in 2017, Tim co founded walls that unite a nonprofit organization that provides educational experiences in low in low income communities in the United States and Mexico. Tim Adams, welcome to the podcast. And thank
Tim Adams 2:45
you, Tim, and Jeff, for having me today. It's a pleasure to be here.
Tim Kowal 2:49
Well, thank you, again, for being here. And being willing to share your experiences wonder if you can tell us a little bit more about your practice that I covered in that brief introduction, what is the day in the life of a special education attorney look like?
Tim Adams 3:00
Well, we spend quite a bit of time counseling families through the educational planning process, as attorneys were helping to, you know, help them to navigate how to improve their educational programs or their child's educational programs. Those plans are created, as you mentioned at the beginning, via an individualized education program or an IEP, and that's set up through federal and state laws. And it's an obligation of the public school system, either the school district or a public charter school to prepare that IEP. So often, when I spend my day speaking with parents about concerns that they have with those IEPs, and how to resolve those concerns, whether it be a change in services, or a change in goals, most often it happens to be maybe a dispute over what's appropriate. And that's that becomes really the most important question in this field is what is it appropriate education for students?
Tim Kowal 3:52
Maybe you can walk us through when is the first time that a parent will likely hear the term IEP and learn about what this process looks like? And when do they first start to think gosh, maybe I need Tim Adams or a special education attorney to help me enforce my rights under this IEP. How do they know if they're getting shortchanged or they're not getting all that the law requires that they get out of their IEPs?
Tim Adams 4:12
Well, they may 1 hear that term, depending on what their child's diagnosis is, in California, the regional center system. So if we look in California has an obligation to address the needs of students that are even before they reach school age. So from zero to three years old, there are educational programs that are set up under Part C of the Individuals with Disabilities Education Act, that's the federal law that governs special education and that provides individual family services plan or an IFSP for students before they reach school age. And then that in California, the obligation to provide that program is through the regional center system. So they discuss that with the regional center if there's if their child is a student with an eligible developmental disability. If they're not, they may not hear that term until they reach school age and start kindergarten and realize My child's you know, delayed in some way or having trouble learning letters or reading, it could come as late as in some cases, if it's maybe a mental health concern junior high or high school or could come as early as before they reach school age at three years old.
Tim Kowal 5:15
So some of these families have some inkling that their child has some problems in there, they're getting their child assessed, maybe even before they get into school, or at least before the scribe tells them about
Tim Adams 5:25
it. That is correct. And so there's an obligation, it's a little complicated sometimes for parents to navigate, but they may be headed off from a regional center system to the to the school district, and there's a exchange that happens prior to age three, where the school system takes over and has to assess and determine whether the child meets eligibility criteria under 13 categories, one of 13 categories, or more than, you know, one or more, and then makes that special education or IEP offer. And that's where the process starts. And that could start at any age in California with federal law sets, you know, sets the obligations of school districts between three and 20. And 21. In California is extended that to 22.
Tim Kowal 6:04
Okay, Jeff, you
Jeff Lewis 6:05
want to ask question? Yeah. Hey, Tim, thanks, again, for being on the show. Sometimes I hear about the term advocate that an advocate will attend meetings involving IEPs and special ed lawyers, what is an advocate? What's an advocate do so
Tim Adams 6:19
advocate could be just about anyone with specialized knowledge about the child, it could be a child's therapist, maybe a child is receiving some services through a marriage and family therapist, it could be you know, a relative, maybe an aunt uncle, it could be a doctor, it could be a child's teacher, you know, anyone who has specialized knowledge that is willing to advocate for the child's interests could be an advocate. And typically, it's going to refer to as a somebody who's not a lawyer, not a licensed attorney who's attending a meeting and advocating on behalf of that child.
Tim Kowal 6:51
Yeah, I thought maybe let's pause this deep dive into special education, law and backup for a moment. And Tim, tell us a little bit how you got into special education law. This is you're obviously deep in the weeds here. You know, every you know a lot about special education law, that's your specialty. And most of us attorneys don't know a lick about it. Maybe they don't even know. That's why I had to I didn't stop with just the acronym IEP, I had to define what it is because I suspect a lot of our listeners maybe have never heard that term or don't know what it means. Tell us how you got onto this, how you got into this specialty in the first place? Is this something that you started off with? Or did you take a detour on a more typical? That's,
Tim Adams 7:26
that's a great question. And I really became exposed to the IEP process as a young child have a younger brother with special needs and relatives who were supporting him, including my mother and attending IEP meetings. And I spent my afternoons waiting often and doing my homework waiting for my brother to finish therapies or, you know, tutoring and things like that. So I became exposed to the whole process as a child, although I didn't understand how the law would play into that. I just knew that mom was helping my brother out, and I was doing my best to get in the hand as well
Tim Kowal 7:59
as the system. Like at that time, what was your mom able to find support?
Tim Adams 8:02
She was surprisingly at the time, you know, my parents really had, you know, thought the answer was pride. You know, attending private schools and having him continue to to go to one private school after the next and for so this private schools weren't equipped. They weren't specialized, special education equipped private schools. They were your run of the mill private school, that maybe a parochial school that met well, but really didn't know how to address his needs. So he had mostly learning disabilities and had some trouble with academic concepts and did okay in law as long as he was in a small group or one on one setting. So unfortunately, you know, after moving through two or three private schools, they did find that the IEP process through the public school system was was likely going to be the best match. And so thankfully, they actually had a good outcome through the IEP process and continue to have a pretty positive outcome. But my initial exposure, of course, to that whole process was as a child and then moving into law school, I was looking for some elective courses to take and disability law was an option. And I was at Pepperdine law school. And it was an evening course. And it looked very interesting to me. So I signed up for the course and met a professor there, Dr. Meredith ghats, who became a mentor to me, and she ran the special education legal clinic that at the time was under contract with the Lanterman Regional Center and provided advocacy, free advocacy to families who had children who were consumers of that regional center. So my exposure was through a clinical program and that class at Pepperdine law school way back in the late 90s. And ended up getting into this field as a result of that. Now, I'll pause for a second if you have any follow up questions. But you know, a really quick follow up on Did you have any questions about that? Or, you know,
Tim Kowal 9:47
you had mentioned that in your experience in your childhood with with your brother having to go deal with IEPs and your mom navigating that process. You said that fortunately, it went fairly well, he seemed to get the services that he needed. So obviously you didn't Need the future you special education lawyer to come in and advocate for his rights? So did you have an inkling at the time you enrolled in Pepperdine law school, or at the time taking this disability rights class that I'm gonna go special education law become an advocate for, you know, kids with special education needs,
Tim Adams 10:15
I actually didn't in fact, I didn't even know it existed until I went to law school. And I'd say most of my student colleagues, quote, you know, they were weren't aware that this existed. And and so you're, in course, your average attorney doesn't know this exists. So you know, I did learn a lot about it, and then became very fascinated and very interested now, even though my brother didn't have any struggles, where it's at least that I knew of with my, you know, through the IEP process, you know, there were struggles in life. And there were advocacy moments that were, you know, that presented themselves even after he finished school. So we're able to have that provide that support and assistance because students that finish the IEP process and graduate but still need to navigate their life and their jobs and their higher education. And there are a lot of opportunities to continue that advocacy. So I would say for him in particular that came after high school once he received his diploma, but you know, it was a revelation for me having taken that class that this is really was really something that I was passionate about was interested in. And after interacting with families, and having the privilege of representing as an advocate, under the supervision of two attorneys that were adjunct professors have several families that were consumers had children, consumers to the regional center, I really fell in love with this practice area. Yeah. And as a result of that, I and a friend of mine, a law student was also in the clinic drafted a business plan. And he proposed it to a mid sized law firm right here in Orange County. And they agreed to take us on as you know, new graduates developing a special education practice group. And that's how we got started.
Tim Kowal 11:57
Now, you had mentioned that even after your brother finished school successful using the IEP process that they you spotted, even afterward there were I think you'd call them advocacy moments where maybe I wonder if you could unpack that a little bit and that segue into a you know, are there counterpoints to you and your practice in the education realm in the employment realm where employment law attorneys need to be able to spot the kind of employees who may have these advocacy moments where, where they need someone to advocate for them in the workplace?
Tim Adams 12:25
Yeah. And that's a great question. So these moments included interactions he may have with with supervisors, or other staff members as he had a diagnosis at the time of ADHD. And so it's sometimes it's challenging for him to to deal with stressful situations. And so there was a lot of counseling that took place. And in some cases, behind the scenes, you know, instruction, this is what you need to say to your boss or supervisor, this is what you shouldn't say, No, you shouldn't tell your boss to eff off and walk out. That's not a good idea. Let's let's come up with some more productive ways to address the impulsivity and some of the anger issues that go along with the diagnosis. So I was advocating not directly on his behalf in sort of a adversarial sense, you know, against an employer, it was more, you know, with a lot of counseling, I would say,
Tim Kowal 13:15
Yeah, well, so when you when you graduated and pass the bar, did you go right into special education, litigation and advocacy,
Tim Adams 13:23
I did actually started and through my mentor, Dr. Getz, we were able to I started with several cases through their Lanterman regional center, they contracted with my very small office at the time, my office is one myself and we were able to represent, I was able to represent several families initially and then ended up I had a partner right after that. So I worked for a small firm after I became a licensed attorney and worked for myself. And then I partnered up and then developed a quite a robust practice that partnership dissolved in roundabout 2009. And I've been on my own with associates since about that time.
Tim Kowal 13:59
Okay, well, and let's, let's try to put some more meat on the bones of what I think maybe for our listeners, and for me, it might still be too abstract, you're dealing with IEPs and advocacy. Now, does that translate into a lot of litigation? Or is it is it a lot of paperwork phone calls? What is what is the day in the life?
Tim Adams 14:15
Okay, so it's mostly it does translate to a lot of litigation. And this process starts always with an assessment, the first thing you have to do is assess a child and determine if they're eligible under several categories. I mentioned the 13 categories. As an example, a student with ADHD, that and having that diagnosis doesn't in and of itself automatically qualify them for an IEP if the ADHD doesn't adversely impact his access to education, then he could be fine without it. He may need something like what's called an accommodation plan under Section 504. I have some clients that just need accommodation plans under 504 But most of my clients have IEP, so you start with that assessment. Is the student eligible? Whether they have a diagnosis or not, you know, you have a lot of fans At least they don't have the resources to go out and hire doctors to get various diagnoses. So you may have quite a few undiagnosed conditions that manifest in the form of a disability that we haven't identified. Or maybe it's a really complex situation where you may never quite identify that disability, but you know, that it's manifesting in native ways that impact adversely impact access to education, they can't get up and go to school, because they're really depressed, they, you know, they're having trouble focusing, they maybe have limited vitality in some way, they can't stay at school for more than a couple of hours, we may not have identified that exact diagnosis, but it doesn't matter under the ADEA. As long as we can identify a category that would make them eligible for special education, we can call it for example, and other health impairment or an O H AI, if it's clearly a diagnosis that impacts you know, that that's more academic in nature impacts their ability to access their academic work, it could be a specific learning disability, and SLV, these there lie acronyms in this field. So I'll try my best not to use too many. But you know, there's, you know, others, you know, the child has a diagnosis of autism, again, just just, you know, in and of itself doesn't mean that they're eligible for an IEP, maybe that autism diagnosis is relatively, is not very impactful in the sense that they, you know, it doesn't necessarily prevent them from accessing education or other services at school. And maybe it doesn't qualify for them, I'd say, in many cases, it does. But just because they have that diagnosis doesn't equal IEP eligibility. But there is a category under the law called Autism. So there are many students that do qualify. So those are just three of the many. But once you reach that eligibility, then the next step is to determine what the present levels of performance and functioning are. So we can develop goals. And those goals would be put into place in the areas of need that we've identified. So all we're going to list all the areas in need, and then we're going to develop goals. And then those goals are going to drive where that student is ultimately placed what school environment looking at the least restrictive environment as the option so we're looking at the neighborhood school with typically developing peers in a regular classroom with with some supports, maybe some accommodations, maybe he sits in the front of the class, so he can maybe he has an FM system, the bass, treble, paying attention, things like that.
Tim Kowal 17:17
No, I have a question of mine. I wonder if you're leading up to it is sure, what is the source of the disputes? By the time they get to you? Obviously, the parent has probably, you know, had the conversation about developing the IEP? And is the school telling them nuts to you, I'm not doing the IEP, or is it just you don't qualify? Or no, I'm gonna give you ABC but not XYZ. And that's where the dispute is, what why are they coming to you as a special education attorney,
Tim Adams 17:42
all the above. So what you just mentioned all those reasons or reasons why parents may come to my office saying, I strongly believe that my child qualifies for an IEP, he's struggling, he's failing classes, but the district says he can do it. He's He's capable, he's choosing not to, therefore we're not going to qualify, and we're not going to provide the supports. There are circumstances where they're already eligible. And we have a dispute over the amount of service, the intensity, the methodology, all sorts of disputes. When we have a child with dyslexia, for example, where the district feels strongly that they have the appropriate structured and environment to provide support and ensure that child's success and the parents is no boss is too big. The rocks were used, they're using the wrong methodology. The teachers aren't appropriately trained, and therefore he continues to fall behind. He's you know, he's he's in fifth grade, but he's at a second grade level, I get those clients frequently. And then we're looking at private placements that specialized in providing instruction to students with dyslexia. So and we also have, you know, a number of other types of disputes. I have a number of students unfortunately, post COVID, that are, their mental health conditions have worsened pretty significantly. And so unfortunately, we're placing a record number of kids with through public school districts and negotiations with them in residential treatment facilities or therapeutic boarding schools, 24 hour care facilities,
Tim Kowal 19:04
you say, a record number, what is the uptick look like in terms of percentage
Tim Adams 19:08
increase, I'd see a 30% at least increase in the number of students that that or at least that I'm serving, that are being placed. And these are new clients and existing clients that are being supported, you know, in a day program in their neighborhood school, and they're even in their specialized private school. And as a result of that, we're, you know, we're having to look at alternative options that are there more intense therapeutically, and often out of state programs.
Tim Kowal 19:36
So this uptick that you mentioned some 30%, since since before the pandemic started, these are going to you said residential treatment, but what is the nature of the of the treatment that they require?
Tim Adams 19:47
So it's really they're receiving their education, typically in a normal school day, but they're there it's it's essentially a boarding school and they're also receiving a lot of therapy throughout the day through them. We're professionals. In some cases, medication management is also on site. Depending on the severity of the disability and the need, you may have less restrictive therapeutic boarding schools and we're restricted therapeutic boarding schools in California has rules are a bit different than some out of state programs. But California school districts contract with dozens of out of state residential facilities to care for students with mental health challenges of various sorts. So I'd say the vast majority of my clients that receive residential care, you know, on an IEP are out of state, meaning they're receiving services out of state, but they're residents in California.
Jeff Lewis 20:37
Interesting. Hey, on the subject of an IEP, let's say the parents agree on the goals and agree on the services and everybody is in agreement, but the school is just not meeting those goals, those services not following the IEP. What remedies does a parent have to enforce an IEP short of litigation? Is there anything a parent can do to force a school to follow the IEP?
Tim Adams 20:58
Yeah, absolutely. That's actually a pretty fairly streamlined approach. And I had a client, email me about that just this morning, if you believe that the school district is not in compliance with the IEP, and it's very clear that the IEP requires certain items implementing a service or a goal or an accommodation, it's not being done, you have the option to not litigate, but file a compliance complaint with the California Department of Education, there's a very, very easy form to fill out on the California Department of Education website and their special education division. And there's a 60 day timeline once you complete that form, and submit it usually with some exhibits and evidence of what's supposed to be happening, and it's not, and they will complete their litigate their investigation within 60 days and make a decision as to whether the district is in or not in compliance.
Jeff Lewis 21:47
Does a parent need a lawyer to to initiate that kind of process?
Tim Adams 21:51
They do not. They do not need a lawyer. In fact, even though lawyers can initiate the process for them, and there's the availability of attorneys fees, if you are the prevailing party, if the lawyer does it, the parent, and that's what's helpful for this, in general, if you litigator you file a compliance complaint, if you're the prevailing party, you can pursue collection of attorneys fees, the parent doesn't have to use a lawyer, they can fill out that form themselves, they can mail it off, fax it or email it off, and the investigation will be completed. And and decision rendered within that 60 day timeframe.
Jeff Lewis 22:22
And in your experience as a state rubber stamp what districts are doing or does this result in actual enforcement, but IEPs?
Tim Adams 22:28
It actually does, actually. So what's interesting is the administrative court and we haven't gotten to that Jeff and Tim, but you know, if you don't, if you have a dispute, you're you have to exhaust administrative remedies by filing a special education due process complaint. And in California, the agency with the current contract is called the office of administrative hearings, their special education division is handles those complaints, you've got to go through that process first. So with respect to that, you know, the parent would initially if it wasn't a very clear cut compliance issue, they would usually have to go through that litigation process. And then you know, they if they'd have to go through an administrative trial or due process hearing, get a decision back, but with the compliance complaint to submit it, and wait for a decision. And I would say, in our experience, most of the time, you know, if it's clear cut, meaning the district was supposed to provide five hours a week of speech therapy, and they provided three and the district can't prove they provided five, then the parent wins. It's really not if it's a little murky, or there's any subjectivity to it, it probably shouldn't be filed as part of a compliance complaint, it needs to be really clear cut. And so an answer your question, the short answer is they do a pretty good job if it's a really clear cut issue.
Tim Kowal 23:42
Interesting. All right. Well, Tim, you said that in advocating for IEPs, you've had to file a lot of due process complaints. And that'll quite a bit of your work is litigation. Why is why does litigation become necessary in so many complaints? Isn't this supposed to be non adversarial? Aren't these families who are dealing with special education issues under enough strain as it is without having to go through litigation,
Tim Adams 24:03
it is supposed to be but unfortunately, cost considerations are pretty significant for school districts parents are often having as a result of their child's needs to ask for more money than the district receives from the state and that the state receives from the federal government to fund special education programs. So you may have a district that receives you know, $15,000 to pay for all the services for you know, for a child, their program costs, you know, $100,000 So that's really the motivator for the litigation is they're trying to save cost and more in our experience. Now, the law doesn't really heavily consider that cost factor in decision making, so it can't come up, or it should really shouldn't come up in the IEP discussion. They can't say, oh, it's too expensive, therefore, we're not going to provide it but in reality, it's always a consideration. The district's weighing and how much is it going to cost to pay for this program versus litigate? You know, can we win, you know, they're looking at their exposure and trying to make some decisions. And, you know, unfortunately, you know, for parents, it can be a lengthy and time consuming and sometimes expensive process that they have to litigate, but it's necessary if they really want to get that program that's appropriate for their child and place.
Tim Kowal 25:13
That's interesting. You mentioned that cost is what not a legal consideration. It's not recognized as one of the considerations even though it's the elephant in the room that no one can talk about it under a case
Tim Adams 25:22
called Rachael Hall, and it's very low on the totem pole. But it's it can't really it doesn't really come up and it shouldn't come up in an IEP discussion if it's what the child needs to get an appropriate education.
Tim Kowal 25:33
Yeah, yeah. So it's not the school's ultimate responsibility. And in the eyes of the law to make the numbers foot they just, they have to be so deserving of the of the program, they're the school is obligated to give it to him.
Tim Adams 25:45
So the why, you know, and I'll paraphrase requires a program that's reasonably calculated to confer an educational benefit to students based on that student's unique circumstances. And that program has to be appropriately ambitious. Okay, so these are the that's how we interpret what the law the Individuals with Disabilities Education Act calls a free appropriate public education or fate. So that's how we define it. But as you can, as I'm sure you've heard from that description, that's kind of subjective, like how do we, you know, what does that mean? So what we have to do Jeff and Tim and his processes, we have to get independent evaluators, experts to help us define and design the program for the students. So we typically will have the district start with their assessment. And if we don't agree with the outcome that will ask for an independent evaluation of public expense and independent educational evaluation I II, for sure. And the district can, you know, we ask the district to pay for it, they have two options, they can either fund the assessment by the qualified person that my clients would choose, the parent chooses, or they can file a due process complaint to defend their testing, but that independent evaluation is really going to drive what happens next, that expert is going to tell us what's wrong with the district's program? Can it be fixed? And if it can't be fixed? What should the student receive in terms of an appropriate program? Is it a smaller class size? Is it a different methodology? Is it a new accommodation? Or is it a completely different school, you know, it could be a completely different school, and usually that school is not going to be in the district is going to be it's going to be a private what's called a non public school. In some cases. In other cases, it may be private, non certified school in California, we have this unique requirement that schools that contract with school districts for special education have to be certified as an NPS or an NPA, non public school or non public agency
Tim Kowal 27:33
about how many of these lawsuits do the parents win? And how many do the the schools successfully defend?
Tim Adams 27:39
Unfortunately, parents don't get a lot. And the parents are not often represented by counsel, they're representing themselves. Sometimes they don't, you know, parents are, you know, scared to show up to the hearing. They may not show up. And so parents when fewer cases, especially the ones that are unrepresented? I don't have the exact statistic as of right this second, but it's less than 50%, for sure.
Tim Kowal 28:00
But you did mention that prevailing plaintiffs in these cases may be entitled to attorneys fees if they win, that is
Tim Adams 28:06
correct. So we call them petitioners, at least at the administrative level. So you have to start with the due process complaint filed with the California office administrative hearings, that's the current agency that is under contract to hear these decides claims. And then you know, once you get a decision in favor, if you're the prevailing party on an issue of significance, that materially changes the position of the district as to the parent, then you're the theme that prevailing party under the law, and you can ask for reasonable attorneys fees now, well, we consider reasonable what the school district considers reasonable, that's, there's a completely different opinion every time so we may send a bill and they go out, we only want to pay a third of that, you know, and you know, because you want one out of three issues, but a lot isn't really proportional lies it it doesn't say you've got to win, you know, assign a percentage based on the number of issues you win, it's just an issue of significance. So you could win one out of 10. And that one issue could be worth a huge amount of money to or a great program to the family. And that could be an issue a significant enough in order to collect attorneys fees, but that does drive the parents ability to obtain competent counsel to represent them through the process, because attorneys they either can represent on a fee deferred basis, or they can significantly discount their fees in order to take cases to hearing. And how
Tim Kowal 29:23
far up do these cases wind up getting appealed often do they get appealed to the district court or then to the Court of Appeals? Are they are they would typically be the state court? I assume?
Tim Adams 29:32
No, actually we spend most of our time in federal courts. I'm rarely in state courts. I think that you know, it's a federal law. And and it's very clear that they have jurisdiction to hear these claims. And so we typically would file an action or the other side the district would file an action for appeal in a in a federal court if we what's interesting about the attorneys fees provision, so Administrative Law Judge really doesn't have jurisdiction to make attorneys fees, decisions. There are some you know, I've heard colleagues discuss you know, if they're was a stipulation, maybe the judge would make the decision on fees. But I wouldn't necessarily be comfortable with allowing the administrative lodges to do that. So I typically get a decision. And if it's in our favor, and we're the prevailing party, I'll send in demand for fees and give the district a period of time to respond. If they don't respond, then I'll file a separate action in federal court to collect fees. Now on the appeal side, again, most of them, almost all of them in our office are going to the US district courts, whether depending on where we started the case, either a southern central, eastern, or Northern vast majority of our cases are going to be in central and then a couple in southern we've had a couple of Eastern in the past as well, but and then beyond that are up to the Ninth Circuit Court of Appeals. And I've had several of those over the years. And then a couple that we petitioned for cert to the US Supreme Court, so they go all the way on.
Tim Kowal 30:47
Yeah, yeah. back up a moment to to the process for how the administration of services works. One of the reports that I've been hearing a lot over the last couple of years, a lot of kids a lot of families pulling out of their of their local neighborhood public schools and enrolling in either homeschooling or putting in private schools, and they might be outside of a charter. For families who do that who are not either under a public school or under a public charter, do they disqualify themselves for for IEPs, and provisions of public funds for their support? Or do they still qualify,
Tim Adams 31:17
so they still qualify for support, but it's the family does have to reach out to the public charter school or the school district that they're enrolled in. Typically, it's a school district, if you are attending a private school, and you feel like your child may be eligible for special education or needs services. And the first thing you do is to send a letter to the district or your neighborhood school saying my child, I'd like my child to be assessed special education assessment, you know, to determine if they need an IEP, the district would then have an obligation to come to provide an assessment plan or a consent form within 15 days, the parent signs that returns that the district that has 60 days to complete the assessment process and hold an IEP. So if your question is, you know, if they've already got that, and they leave, you know, are they entitled to services they are and our our position is that they are as long as they maintain active contact with the school district and make it clear that they have a dispute over the IEP. They follow a due process complaint to adjudicate that and that they continue to hold IEP meetings based on a recent Ninth Circuit decision called SW BW or Capistrano vs. SW BW, they have to put into that panel. And I don't necessarily agree, but the parent has to continue to ask the school district for IEPs. And normally speaking, if the parent resides in the district, that school districts has an obligation to continue to hold IEPs. And I think it's clear based on that panel's decision that that family in particular, and I know that case pretty well was my case, unfortunately, the panel saw that they had sent an email at one point saying they were going to go private for two years. And that panel thought that that was noticed enough that they were off the grid, so to speak for two years. So I Our position is that if as long as you tell the district that you're interested in having IEPs, I have an ongoing obligation to continue to hold those IPs.
Tim Kowal 33:03
Okay. So that's an important decision to be aware of, we should cite that in the show notes, we'll get that citation from well, let's, let's talk a little bit bigger picture about the problem generally, and maybe how the legal system and lawyers can come to the rescue. Are there is there something more that attorneys should know about the process so that they can help? You know, they're probably a resource to their, you know, to their loved ones, people in their family probably going to say, you know, I'm going to talk to my attorney in my family about what we should do about about getting little Johnny the services he needs. What does that what does the the family attorney need to know to to steer their loved ones in the right direction.
Tim Adams 33:34
So they would certainly they certainly wanted to start by reaching out to their public school district and asking for the public school district to complete an assessment. If there's any suspicion whatsoever that there's a special education need, whether it's a diagnosis or not, if we suspect that a student is has a delay with speech, or you know, is having some struggles in school or school age, if they're not school age, you would reach out to the regional center. But you know, the best first step is to contact your neighborhood public school and say, I've got a child who's struggling in this area, how can you help and they have an obligation to provide you with a list of supports and services, what's called, you know, procedural safeguards, certainly a parent can get on Google and do Google search for special education attorneys. We consult with lots and lots of families who don't come our clients and give them direction depending on their circumstance. But I would say start with, you know, the internet's a really good resource in and going through the California Department of Education going through the county department of education and looking for special education resources. But if there's again, if there's any suspicion that a child is struggling, start with that assessment.
Tim Kowal 34:42
Yeah. But when you mentioned a lot of a lot of these civil rights lawsuits are improper. A lot of the families do not get legal counsel, is that a mistake? Should they be contacting you or another special education attorney? Well,
Tim Adams 34:52
when I when I say prepare, it's at the administrative level that typically a parent cannot represent their child in a court says them right at the US District Court of Appeals Court, they would be required by the court to retain counsel. If they're representing themselves. That's okay. But they're representing the child's interests, they would have to have counsel. But yeah, with the office administrative hearings, the administrative level, they don't often have counsel. And so even if they didn't have an attorney, I would strongly recommend parents, that parents, you know, talk to an attorney about the process and see if there's a way to come to find, you know, to find some resources, there are some resources available, sometimes through the regional center system through some nonprofits. Unfortunately, there's not a lot of them, but they are available. In fact, the office of administrative hearings, the agency that hears these claims maintains a list of free and reduced priced attorneys. And we do take a fair number of cases that are fee deferred and discounted, you know, all our cases are discounted, but fee to for depending on, you know, the number of cases we're handling at the time.
Jeff Lewis 35:52
Yeah, that's the hearing officer who hears these cases, set hearing officer only hear these types of cases, are they hearing all sorts of different administrative law issues.
Tim Adams 36:03
And typically, if they're full time employed by the special education division of the office administrative hearings, they will only hear Special Education cases, there are times where they'll pull somebody from their general jurisdiction, who is hearing, you know, last week heard a licensing case, and this week is going to do special ed, if they're short staffed. But in my experience, it's usually just full timers that do that. Here's Special Ed claims all the time.
Tim Kowal 36:26
We don't tell our audience a little bit about the Lanterman Act. I understand that's the law that requires I think it's the regional centers, maybe it's the regional centers that we talked about for disabilities and advocacy for people with disabilities, does that Lanham Act to help has to do enough, right. So what are the gaps that need to be filled? And what's interesting
Tim Adams 36:42
is Lanterman Act in California, the regional center system wears two hats. Okay, so they mentioned that part C of the IDA is the early intervention program component. So students that are kids that are zero to three, so Birth to Three, they still may have needs that the school district isn't responsible to address. So in California, we've assigned the responsibility to be the educator to the regional center system. And then and so the regional center system also has a responsibility to take care of people that have qualifying disabilities under the Lanterman Act. So they went to half that got the Early Intervention unit that is the educational provider, that's the regional center under the land. And then the you've got the Regional Center, also carrying the responsibility of addressing the needs of people with developmental disabilities that once you become eligible for the regional center as a person with a developmental disability, then you receive certain benefits and services for life. Now, the Lanterman Act is unfortunately, you know, the requirements that the regional centers are supposed to to have as watered down over the years since I first got into this practice in the early 2000s. Lanterman Act used to require quite a bit more from the regional center system, they are the payer of last resort, in most cases in almost every case. And so if the school district or another state agency does not have to provide a service or a program, the Lanterman Act says the regional center has to pick up the tab if it's necessary for their consumer. Now, it's all that's only people that are still eligible once they've turned three, because remember, you've got this group of zero to three, some of those people may not be eligible once they reach school age under Lanterman Act conditions, but the regional center is still responsible under Part C of the IDA. So you have the shift, where some people will remain eligible and receive school age services as a consumer for life and other folks will transition to the school district and the school district is then responsible, but they are no they're no longer receiving services from the regional center because they do not qualify under the Lanham Act. So depending on the severity of their developmental disability and the permanency of that developmental disability, the Lammert Lanterman Act would require that the regional center continue to maintain programming services, but only as the payer of last resort after age three. I hope that wasn't too confusing. There's a lot of moving parts there.
Tim Kowal 38:57
Well, yeah, there's a lot of moving parts in this whole space. Yeah. So let me ask you, this is one of my last questions about as a special education attorney, what spaces are you watching in the judiciary, when cases come up on on these issues? What questions are left unanswered? What spaces are you watching in the area of special ed, special education law? Well, I'm
Tim Adams 39:14
curious to know, on the funding issue, and this is one that's going to come up and, you know, when Congress gets around to reauthorizing the IDA, can I start with that, I like to know if at some point parents are gonna get we're gonna write into the idea that expert witness fees are also recoverable, because that's the app becomes a significant expense. And so
Tim Kowal 39:34
it's often used in these administrative hearings. Absolutely.
Tim Adams 39:37
An expert fees can be very expensive. So even though attorneys fees are recoverable, expert witness fees are not recoverable. It's not clear and courts will not allow that, you know, the idea isn't specifically stated recoverable. So ultimately,
Tim Kowal 39:50
so it's not it's not known to some court award those expert costs and they're not clearly not
Tim Adams 39:55
recoverable. So not recovered. So they're not recoverable. Yes. So that Because of that, we'd love to see a shift in terms of, you know, I would love to see some of the other circuits, you know, decide make some clear decisions on parent districts ongoing obligations on students that are privately placed, and parents rights when those students are privately placed, as the student and the parent have an have an affirmative obligation to reach out to the school district and start that process and continue that process and continue to engage the school district in discussion, or is it the, you know, the school district, the government agency, that obviously has more resources and more knowledge that should continue to be responsible to help and guide that the parent through that process? Because the concern I have, and I'll go back to the Capistrano versus SW BW decision is that, you know, puts a lot of burden on parents to continue to have to even know that they would continue to have to reach out to the school district and ask for help. Little do they know if they don't according to that panel, they may be, you know, losing all sorts of potential reimbursement, and the district may not have ongoing responsibilities unless they continue to engage. So I'd love to see more circuits make some query decisions, and I'd like to see a case of, you know, fortunately our case on s on the SWD Debbie case, the petition for cert was denied. So I'd love to see the Supreme Court take that type of case and make it really clear that it's always the school district's obligation to affirmatively reach out to parents and continue to hold IEPs every year unless the parent clearly waives their right to have that IEP.
Tim Kowal 41:32
Yeah, I wonder if do you advise clients to send out Capistrano notices, you know, every semester to the district? Well, I'll put it this places.
Tim Adams 41:39
Yeah, exactly. I put it this way until parents that talk to me. In fact, most of our letters will always say parents continue to have an ongoing desire to work with the district to hold IEPs we make it very clear in almost every piece of correspondence that we're not waiving our right to request an IEP, yes, we may be actively disputing an IEP, we may be privately placed, but we're not waiving our right and we continue to request that IEP meeting. Again, that panel, I think, got it wrong. And um, you know, Supreme Court didn't want to hear at this time, but maybe at some point in the future, we can convince them to hear it on a different case.
Tim Kowal 42:12
Yeah. Well, and you mentioned the expert witness fees really need to be compensable. To the to the prevailing,
Tim Adams 42:17
that's a congressional thing. We got it. That's the Congress is going to have to fix that. But Congress seems to be too busy to worry about special ed. Unfortunately, it's important issue, and they haven't gotten around to it since since 2004. That was the last time the IDEA was reauthorized and went into effect in June 2005.
Jeff Lewis 42:33
Interesting, hey, in terms of the future, and clients that are coming in to see you, have you encountered parents that are seeking accommodations or IEPs, for their children who are suffering from long COVID? Or do you expect that to be a part of your practice going forward?
Tim Adams 42:48
I have it, but at least it's not clear, I do have some unique medical conditions that that I've seen recently, but that as far as we know, they're not they're not COVID related. Most of my clients, you know, children, we've seen, I think, in general have been pretty resilient to COVID. But I think it's the adults that have had more trouble, right. So they are the ones with pre cut pre existing conditions, especially in the older adults. So I really haven't, the part about COVID, that was really unfortunately, very negatively impactful for my clients was the way that California, you know, treated really, you know, that dealt with the circumstance of closing schools for such a lengthy period of time and, and leaving it up to the school districts to decide in some cases, when to reopen, we, we had situations where school districts didn't reopen for over a year. So they closed effective, say the first, you know, mid part of March, and they didn't reopen in some cases until April or May of the following year. And that's too long for kids to be out of school. So if you're talking about the COVID impact, it's not that it's not the illness itself, that it was the reaction to the illness that really caused the most significant harm to students, in my opinion. And as a result of that lengthy school closure, we've got kids that were already really far behind that are much much further behind. You know, most parents didn't realize, but school was optional. In the spring of 2020. Through the end of the school year, parents didn't have to send their kids to school kids didn't have to go and teachers didn't have to show up to work.
Jeff Lewis 44:19
Hey, does that mean that districts were off the hook in terms of their IEP obligations to families during that same time period?
Tim Adams 44:26
And that's that's a great question. The answer is no. And Congress actually asked the US Department of Education Secretary Betsy DeVos to weigh in on that when they passed the Cures Act and gave the US Department of Education a about a month to respond and Secretary very clearly stated that the obligations continued there was no and there should be no waiver. At least that was her advice to Congress. Congress didn't take any action to change anything. So but yes, districts were lobbying they shouldn't have to continue to implement IEPs during the COVID closures and the Secretary said Nope, you need to continue to implement these IEPs the timelines remain in effect. In fact, if anything, the kids that were intervention that were this, you know that before the school age zero to three kids should probably get some more funding because they missed out. Unfortunately, they didn't get that transition from from the early intervention program to the school district. So if they got caught, if they turned three in March, or April 2020, there was no school to pick up, you know, the program for them. And they could have really been struggling. So you've got a lot of really young kids that were kind of left out in the cold and school districts throwing up their hands going, well, we're closed, and we're not going to take any action until we get back to school in person. But that's where a lot of our cases are stemming from, you know, and now we'll continue to see litigation and more litigation through the appeals process probably for the next decade as a result of COVID closures. Interesting.
Tim Kowal 45:54
All right. Well, as we wrap up here, Tim Adams, what are your predictions and prescriptions for the future in this space, you see things continuing to get worse, and we're gonna see more problems. You mentioned that 30% uptick in kids needing these residential services, additional services, are we going to see funding? And we're gonna see new programs for these things? Are we just in for a lot of unknowns? Yeah, I
Tim Adams 46:13
don't know, it depends on who the next administration is. And with respect to funding funding has been an ongoing discussion, again, the federal government has never fully funded the IDA. So states are often left to decide how to close, you know, to bridge the gap between what they want to get and what they need in order to pay for students education. In terms of the results of going back to my you know, what we saw as a result of the COVID closure, I mean, my prediction is that we'll continue to see a lot of significant struggles, it's going to take us several more years to recover from those closures. And as a result of that, we're gonna see a lot more kids on IEP s, we're gonna have a significant increase in kids with mental health conditions that need that require treatment, a lot more anxiety related issues that we're going to see that I haven't seen in my career, I've never seen so many anxious that you know, kids with that are needed of counseling, support therapy, medication and placement and mental health treatment facilities. So my prediction is that, you know, we'll just see an increase in the number of IPs that are needed to address mental health concerns. Yeah.
Tim Kowal 47:15
All right. Tim Adams, we want to thank you again, for coming on the podcast and keeping our audience abreast of these issues. It's a very important area that affects a lot of people and a growing number of people. Please keep us updated on on more cases and developments that come up in this space and look forward to having you on to keep us updated in the future.
Tim Adams 47:30
Excellent, Tim and Jeff, and I appreciate you having me on. But it's a pleasure to speak with you both today.
Tim Kowal 47:34
Thank you. All right. Well, that wraps up this episode. Again, we want to thank casetext once more for sponsoring the podcast each week, when we include links to the cases we discuss, we use casetext for the case database and listeners of the podcast can find a 25% discount available to them if they sign up that casetext.com/calp. That's casetext.com/calp.
Jeff Lewis 47:55
And if you have suggestions for future episodes, or if you're a member of Congress that wants to weigh in on the recoverability of expert fees, and these types of special ed cases, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 48:09
All right, thanks. See you next time.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases the news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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