Archives for March 2020

March 20, 2020 By LeasorCrass

COVID-19 ALERT: Leave Under the Families First Coronavirus Response Act

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The Act includes two separate, but complimentary provisions, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). Both provisions become effective on April 2, 2020 and are currently set to sunset on December 31, 2020. At this time, we know that both provisions are applicable to public school districts regardless of size. The Department of Labor is expected to adopt regulations for implementing the new laws sometime in the next 15 days.

The EPSLA provides up to 10 days of temporary paid sick leave to any employee, regardless of days of service, who is unable to work or telework because of COVID-19 related issues.

The rate of the paid leave is determined based on the nature of the interference.
Full-time employees will be eligible for 10 days (80 hours) of leave at their regular rate of pay, up to a limit of $511 per day if they are:
- Subject to a quarantine or isolation order related to COVID-19;
- Advised to self-quarantine by a health-care provider; or
- Experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
Alternatively, employees will be eligible for up to $200 per day of paid leave when it is required to:
- Care for an individual subject or advised to quarantine or isolate; or
- Care for a child if school or place of care is closed or childcare provider is unavailable due to COVID-19.
Similarly, part-time employees will be entitled to paid sick time equal to:
- the number of hours the employee works, on average, over a two-week period; or
- for variable schedules, the average number of hours worked per day over the previous six months or the reasonable expectation of the employee at the time of hire of the average number of hours per day the employee would normally be scheduled.

The EFMLEA expands the FMLA to provide up to 12 weeks of FMLA leave to full- or part-time employees who have been employed for 30 calendar days.

Importantly, the EFMLEA expands the FMLA’s list of qualifying needs to include not being able to work due to caring for a minor child if the child’s school or place of childcare has been closed or is unavailable.
Under the EFMLEA, the first two weeks of leave are unpaid; however, an employee may use accrued paid leave, which includes emergency sick leave provided pursuant to the EPSLA.
The rate of pay for the remaining 10 weeks is based on a rate of not less than two-thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work and is capped for each employee at $200 per day or $10,000 in the aggregate.

Leave taken under either provision is protected, and districts will need to be mindful both of potential retaliation claims and the effects the legislation may have on their workforce as they transition into alternative modes of instructional delivery. For example, districts will be prohibited from requiring teachers to continue to work who access leave due to their own children being served at home, even if they would otherwise be expected to work from home.

March 19, 2020 By LeasorCrass

COVID-19 ALERT: TEA Issues Guidance on Special Education

New special-education guidance has been issued by TEA pertaining to the many issues that school districts are currently grappling with. That guidance reiterates that state and federal laws do not provide any flexibility to districts in times of emergency regarding the obligation to provide a Free and Appropriate Public Education (FAPE) to students receiving special education services.

Districts, of course, have a multitude of questions about how to fulfill that obligation. TEA is attempting to address those questions and has established a task force dedicated to this issue.

Logistically, it is important to note that ARD committees may meet telephonically to conduct business. This is critical to keep in mind when reviewing the many obligations discussed below.

According to TEA, if a district’s emergency closure or its transition to distance instruction is anticipated to exceed ten (10) consecutive school days, that is considered a change in placement and will require action by the ARD committee. Additionally, after a district reopens following an extended closure, ARD committees are required to make individualized determinations as to whether any compensatory services are needed.

If a district continues to provide instructional services to the gen-ed population, and an IEP cannot be implemented in its current form, then ARD committees must meet and modify the IEP. On the other hand, if a school is closed, and no services are being offered to anyone, then state evaluation timelines halt.

Related services must be provided when districts transition to digital/distance platforms. Further, ARD committees must change an IEP if the provision of related services results in a change in placement.

If an IEP cannot be implemented through a digital or virtual learning platform, the ARD committee must make a determination as to which services can be provided to meet the student’s needs. Additionally, for IEPs that cannot be implemented virtually, districts may offer educational opportunities at a designated site (e.g., school, third-party location, etc.), but ARD committees must meet to make that change in location.

If an IEP cannot be fully implemented in either a face-to-face or virtual environment, the district should document those services that were not able to be provided to each individual student, and the ARD committee must later make individualized determinations regarding compensatory services. The documentation should be detailed enough to allow the ARD committee to later make these determinations. Districts are also advised to plan for effective communication with families regarding any services that cannot be provided during the COVID-19 response.

With respect to timelines, TEA’s guidance states that if any educational services are being offered (face-to-face or distance), the 45-day timeline for conducting Full and Individual Initial Evaluations (FIIEs) still applies. Any days that a school is not in session—meaning no educational services are offered to any students—do not count as school days for purposes of the FIIE timeline. Following the completion of an FIIE, the 30-calendar-day timeline still applies for ARD committee meetings concerning initial eligibility determinations, IEPs, and placement decisions.

We can expect to receive additional updates from TEA on these issues. Additionally, it has recently been reported the Secretary DeVos is considering providing additional guidance and/or waiver authority to states. We will keep you advised of those updates, as well as any relief legislation or additional guidance from federal agencies that impact special education. If we can help you in any way while you navigate this daunting process, please let us know.

#onedayatatime

March 18, 2020 By LeasorCrass

COVID-19 ALERT: Governor Allows Local May Elections to be Postponed to November

Governor Abbott issued a proclamation today that suspends provisions of the Texas Election Code to allow political subdivisions to postpone their May 2, 2020 local elections until November 3, 2020. This action is aimed at avoiding large gatherings of members of the public in the continued effort to stem the tide of COVID-19. Governor Abbott strongly encourages local election officials to take advantage of these waivers. The press release announcing the proclamation is available here.

Additionally, the Secretary of State has released an election advisory to provide guidance for political subdivisions that opt to postpone their May 2nd elections. School boards wishing to take advantage of this waiver must order the postponement by adopting a resolution containing the following items:

A reference to the proclamation that authorizes the entity to postpone their election date, and the fact that the political subdivision is exercising this authority.
Confirmation that the candidate filings for the election will remain valid for the election held on the November date and that the filing period will not be re-opened for the November election date.
Confirmation that all applications for ballot by mail (ABBMs) for voters that are voting by mail due to being over the age of 65 or due to disability will still be valid for the postponed election, and that ABBMs for voters who submitted ABBMs based on expected absence from the county would not be valid for the postponed election.
The major relevant dates for the November election, including the voter registration deadline (October 5, 2020), the deadline to submit an ABBM (October 23, 2020), and the dates for early voting (October 19, 2020 – October 30, 2020).

Boards will also need to meet by August 17, 2020 to make necessary revisions to the original order of election. Additional details may be found in the Secretary of State’s election advisory.

If your district needs assistance drafting a resolution or would like any additional guidance concerning this process, please reach out to one of our attorneys.

March 17, 2020 By LeasorCrass

COVID-19 and the Public Information Act

The Office of the Attorney General (OAG) has issued the following guidance concerning the calculation of business days under the Public Information Act (PIA) during the response to COVID-19:

Holidays observed by the governmental body are not business days.
Weekends are not business days.
Skeleton crew days are not business days.
A day on which a governmental body’s administrative offices are closed is not a business day.
If a governmental body has closed its physical offices for purposes of a public health or epidemic response or if a governmental body is unable to access its records on a calendar day, then such day is not a business day, even if staff continues to work remotely or staff is present but involved directly in the public health or epidemic response.

Most school districts will benefit from at least one of the points above due to the current epidemic. Specifically, the fifth point will allow districts to not worry about PIA timelines as those are deferred until normal business days begin to occur again. Districts should evaluate current in-house requests, as well as any new requests, and keep an accurate calendar to track response dates.

Additionally, Senate Bill 944 amended the Government Code last summer to allow for a temporary suspension of PIA requirements for governmental bodies impacted by a catastrophe. Under the new section 552.233 of the Government Code, a school district may suspend the requirements of the PIA for up to 14 days if the district is currently impacted by a catastrophe and provides the required notice to the OAG. The new provision defines a catastrophe as “a condition or occurrence that interferes with the ability of a governmental body to comply with the requirements of [the PIA].” The statute lists several examples of catastrophes and specifically includes an epidemic. To invoke this provision, the district must provide notice to the OAG, and the OAG will in turn post that notice on its website. Districts must also provide notice to the public of the suspension in a place readily accessible to the public and in any other posting location required by the Open Meetings Act.

The required catastrophe notice is available for download here and may be electronically submitted to the OAG here. The OAG has compiled instructions to assist with the completion of the notice.

The initial suspension period may begin up to two days before the governmental body provides notice to the OAG but may not be longer than seven consecutive days. The initial suspension period may be extended one time for an additional seven consecutive days, and the extension must begin on the day following the end date of the initial suspension. The total timeframe of the suspension should not exceed fourteen (14) days. Districts seeking an extension beyond the initial suspension period must submit an updated notice to the OAG.

Any PIA request that a district receives during a suspension period is considered to have been received on the first business day after the date the suspension ends. As for PIA requests received before an initial suspension period begins, the deadlines under the PIA are tolled until the first business day after the date the suspension period ends. When calculating deadlines, districts should be mindful to include any business days prior to the initial suspension period in their calculations.

The OAG’s guidance issued in light of COVID-19 explains that the suspension process under section 552.233 is appropriate where a district is open for business but determines that a catastrophe has interfered with the district’s ability to comply with the PIA. On the other hand, if the district is not open for business due to COVID-19, or if the applicable suspension period does not encompass a business day, then the suspension process is not necessary.

March 17, 2020 By LeasorCrass

COVID-19 Guidance for School Districts

We here at Leasor Crass know that school districts are faced with a number of issues related to the possible spread of COVID-19. The purpose of this guidance is to address some of the more common questions we have encountered.

This guidance is for informational purposes only and is not a substitute for obtaining legal advice. We also note that this is a rapidly evolving situation, and districts should therefore regularly consult the latest guidance from the CDC and state and local authorities to ensure that decisions are made with the most current information available.

CLOSURE & ATTENDANCE WAIVERS (updated 3.21.20)

According to the March 12, 2020 guidance from TEA, attendance and instructional minute requirements are still in place. The normal process for obtaining waivers still applies. Beyond that, districts may seek additional minute waivers due to COVID-19 closures as long as the district commits to supporting students instructionally while at home.

For districts that have not closed but are experiencing low attendance due to COVID-19 concerns, those districts may submit the attestation statement related to educational support to TEA. This will allow the district to count students who are absent from campus grounds as being present for purposes of Average Daily Attendance.

The attestation forms required for both situations are available in TEA’s March 12, 2020 guidance (pg. 2) and on TEA’s COVID-19 resource page. Attestations must be submitted by July 1, 2020 and will be considered retroactively (see 3.19.20 FAQ at question 4). TEA has also issued guidance concerning PEIMS documentation: March 12, 2020 Initial Guidance (pg. 3) and March 19, 2020 School Finance FAQ.

Many districts have sought clarification concerning what constitutes being “closed” during this time. According to TEA’s School Finance FAQ, school days will generally fall into one of the following four categories:

Closed, Instructing: Those who cease normal operations, so that children no longer come to the school site at all, but are instead provided support to receive instruction at home/off-site. The staff may be doing this work while on-site or remotely or in some combination.
Closed, Preparing: Those who cease normal operations, but campus staff are working (either on-site or remotely) in order to prepare so they can deliver instruction to students while the students are at home/off-site. Non-instructional staff may also be working during this time, including at least school-cleaning activities.
Closed, Temporary: Those who previously announced a short-term (likely one week or less) closure out of an abundance of caution, and at the time were not actively working to prepare to deliver remote instruction. Non-instructional staff may also be working during this time, including at least school-cleaning activities.
Open: Those who are allowed to re-open at some point, but who may face large absenteeism in terms of in-person student (and possibly staff) attendance.

Guidance concerning documentation under these categories, and how each category affects instructional minutes, may be found in the FAQ.

TEA is encouraging districts to treat absences related to COVID-19 concerns as excused absences. On March 15th, TEA also announced that waivers will be automatically granted for students who do not meet the 90% rule pertaining to minimum attendance requirements.

CONTINUITY OF INSTRUCTION (updated 3.21.20)

TEA has issued guidance related to planning and providing instructional continuity during extended school closures, including considerations for districts transitioning to an online distance model. TEA released additional tools to assist districts on March 20, 2020, including a planning tool, an immediate-action checklist, and guidance regarding providing internet access to students.

Districts must ensure that instructional planning addresses the needs of special populations, including the provision of all services required in IEPs. The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) and Office for Civil Rights (OCR) released additional guidance on this issue on March 12, 2020 and March 16, 2020, respectively. According to that guidance, if districts are closed and are not providing any educational services to the general student population, then schools are not required to provide services to students with disabilities during that same period of time. Once instruction resumes, schools must return to providing special education and related services to students with disabilities in accordance with the student’s IEP or 504 plan. If schools shift to an alternative mode of instructional delivery (distance education/online learning) and/or if students are otherwise required or advised to stay home, then districts should work to determine if some or all of the identified services in a student’s IEP or 504 plan can be provided through alternative or additional methods, consistent with protecting the health and safety of the student and those providing services to that student. If a student does not receive services as outlined in an IEP or Section 504 Plan for an extended period of time, schools must make an individualized determination concerning whether and to what extent compensatory services are needed.

According to OCR’s guidance, IEP teams are not required to meet in person while schools are closed. Any evaluations of students that require face-to-face assessment or observation would need to be delayed until school reopens. If face-to-face assessment is not required, those evaluations may take place during school closures if the parent or guardian consents.

TEA has now devoted a separate page within its COVID-19 resources to special education that includes a March 20, 2020 FAQ and form documents for districts to send to parents. A special-education task force has now been formed, so we can expect additional materials to be made available on that page in the coming days.

CONTRACT NONRENEWALS

Districts that will remain closed for an extended period of time should proceed with caution with respect to nonrenewal decisions. To the extent a district planned to rely on additional future documentation or compliance with a growth plan to support a nonrenewal decision, those decisions are subject to a greater risk of being challenged by the employee in the face of a district shutdown.

On the other hand, if sufficient documentation already exists to support a decision to nonrenew an employee, then a district should feel comfortable proceeding with the process. Written notice of proposed nonrenewal must be given to affected employees at least ten (10) calendar days before the last day of instruction. Employees must request a hearing within 15 calendar days of delivery of the notice. If the employee requests a hearing, the board must hold a hearing within 15 days of the request unless the parties agree in writing to a different date. If no hearing is requested, the board must take final action and provide written notice to the employee within 30 calendar days after the notice of proposed nonrenewal was sent to the employee.

SCHOOL BOARDS

Temporary Delegation of Authority: Boards are not required to meet monthly. TEA’s guidance to districts notes that a board may give the superintendent the authority to take specific actions on behalf of the Board for a limited time, including the authority to expend funds over the amount usually requiring board approval or human resources practices such as acting on contracts. We can assist with identifying authority that may be delegated and preparing a resolution that will enable boards to take this action.

Paying Employees During Closures: For periods of time during which employees are not able to work during a district closure, a board may choose to pay employees for such periods if the board determines that doing so will serve a legitimate public purpose. We can assist with drafting a resolution that will allow a board to take such an action without running afoul of the constitutional prohibition against gifts of public funds.

Temporary Suspension of Open Meetings Act Provisions: On March 16, 2020, Governor Abbott temporarily suspended certain provisions of the Open Meetings Act in response to COVID-19 to allow greater flexibility for governmental bodies to conduct meetings by telephone or video conference and avoid congregate settings in physical locations.

School boards may hold open or closed meetings via telephone conference call only if an emergency or public necessity exists—i.e., if immediate action is required of a governmental body because of an imminent threat to public health and safety or a reasonably unforeseeable situation. The nature of the threat to public health and safety must be stated in the notice for the meeting and is to be taken at face value.

Given the severity of the public health concern related to COVID-19, as articulated by local, state, and national public health officials, we believe a board may utilize this emergency provision based on an imminent threat to public health, particularly in counties where there are confirmed cases. The Governor’s temporary suspension order supports this conclusion. Further, given the current shortage of testing kits, we do not believe districts need to wait until a confirmed case appears in their county in order to invoke this emergency provision if the board reasonably believes that an imminent threat to public health exists.

The Open Meetings Act also allows individual board members to remotely participate in board meetings by means of a videoconference call if the video and audio feed of the member’s participation is broadcast live at the meeting. A member who participates in this manner shall be counted as present at the meeting for all purposes, except for any portion of the meeting during which audio or video communication with the member is lost or disconnected. In the event a member’s communication is lost or disconnected, the board may only continue the meeting if a quorum continues to participate by videoconference.

Under the temporary suspension order, all provisions pertaining to videoconference or telephonic meetings that require the physical presence of any board member at a designated location have been suspended. However, a quorum must still participate in the videoconference or telephonic meeting. The face of each participant in a videoconference call must be visible while they are speaking, and their voices must be audible to each participant in the call during open portions of the meeting. Meetings must also be recorded and made available to the public.

Additionally, the temporary suspension order appears to suspend the requirement that boards make at least one suitable physical space available to the public and equip that space with videoconference equipment. Under the order, boards are not required to make telephonic or videoconference meetings audible to members of the public at a stated physical location. Instead, districts must ensure that the dial-in number or videoconference link provided in the notice makes the meeting audible to members of the public and allows for their two-way communication.

The order also suspends provisions requiring the physical posting of a notice. School boards must provide online written notice containing a public toll-free dial-in number or a free-of-charge videoconference link, as well as an electronic copy of any agenda packet.

The public must be provided with access and a means to participate in those meetings, preferably through two-way audio or video connections. Boards must still allow public comments at meetings held by telephone conference call or videoconference in the same manner as allowed at meetings not so held: members of the public must be allowed to comment on agenda items before or during the board’s consideration of the item. As under normal circumstances, the manner in which boards implement the public-comment requirement is within the discretion of the board.

Boards should familiarize themselves with chosen technology for virtual meetings prior to the meeting and make logistical decisions related to holding portions of meetings in closed session and allowing public comments in an orderly manner.

LEASOR CRASS, P.C.

OFFICE LOCATION