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.