Education Lawyers | Leasor Crass, P.C.

Welcome to Leasor Crass, P.C. Leasor Crass, P.C. is a boutique law firm located in Mansfield, Texas, with a main focus on the representation of public schools. The firm is managed by Mike Leasor and Rhonda Crass, seasoned attorneys with …

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November 9, 2020 By LeasorCrass

Understanding Compensatory Services

Dean Micknal
by Dean Micknal

As schools continue to navigate the whitewater rapids of COVID-19, the issue of compensatory services has steadily started gathering more attention both locally and nationwide. While not unexpected given the massive disruption the pandemic has, and continues to, wreak on the provision of special education services, discussions regarding compensatory services are rarely welcomed. This can be attributed to compensatory services being stigmatized as adversarial and punitive. In fact, they are neither.

Compensatory services is not expressly defined in IDEA.  Rather, the statute provides courts with the broad authority to “grant such relief as the court determines appropriate.”  Consequently, when a violation of IDEA occurs, compensatory education may be awarded.  It is very important that this be distinguished from some form of punitive damages.  The purpose of compensatory education is not to punish a school for doing something wrong, instead, the remedy is available to enable the student to be placed in the same position he or she would have been but for the school district’s violation of IDEA.

Due to the lack of statutory clarity, the actual means of achieving this restoration can be confusing in and of itself.  Generally speaking, courts are divided into two camps.  The first is a one-to-one or direct calculation method.  Under this scheme, the student is simply awarded the amount of service that has been denied.  For example, if a student’s IEP required the school to provide five twenty-minute sessions of speech therapy during the first six-weeks of a school year and the pandemic prevented all five sessions from being provided, a court could award the student 100 minutes of compensatory speech therapy.

While this direct calculation method is straightforward, it becomes confusing when applied to less concrete services such as inclusion support and burdensome when applied to instructional services.  Consequently, another doctrine has developed in which an attempt is made to calculate the actual amount of compensatory education needed to “right the wrong.” Importantly, this is the approach that the Texas Education Agency appeared to adopt in its May 2020 guidance “Considerations for Extended School Year and Compensatory Services for Students with Disabilities During and After Texas School Closures Due to COVID-19” (available here.)

In its guidance, TEA clarifies that compensatory services “should not be viewed as remedy for a failure on the part of the LEA, but rather as a means to mitigate the impact of the loss of critical skills or learning that might have occurred as a result of special education and related services that could not be provided during the pandemic.”  Consequently, TEA advises ARD committees to make individualized decisions regarding each student’s need for compensatory services.  This requires a review of data regarding past and current needs to determine whether, and/or to what extent, a student may have lost progress. If the data shows that a student has not lost progress, or that a minimal loss can be made up in a short time, TEA advises that the “ARD committee might determine that the student does not need compensatory services.”

However, if the data does document lost progress, TEA’s guidance requires ARD committees to “consider and, as applicable, include in the student’s IEP the type, location, duration, and frequency of the services the student needs to make up for the lost progress.”  Importantly, TEA’s guidance expressly warns that this decision “should not be misconstrued to necessarily require an hour for hour or minute for minute makeup in services.”

Given this information, there are a few important considerations districts should keep in mind regarding compensatory services:

  • Given Due to the extent of the disruption caused by the pandemic, it is likely not a matter of “if”, but “when” a claim for compensatory services will be made.
  • Compensatory services should be construed as remedial, not as some form of punishment.
  • Compensatory services are not “one-size fits all.” By its very nature, each student with an Individualized Education Program (“IEP”) has unique needs and should be considered to have been impacted by the pandemic uniquely.
  • The process for determining compensatory services is not necessarily adversarial. Rather, the best practice is to have the ARD committee work collaboratively to determine the need for and means of providing services.

Please do not hesitate to contact the attorneys at Leasor Crass, P.C. if you have additional concerns or questions regarding compensatory services.

Filed Under: At Home Learning, Blog, COVID-19, Special Education, Students

July 28, 2020 By LeasorCrass

COVID-19 UPDATE

Below are today’s updates regarding COVID-19 and its impact on Texas public schools.  For additional resources, please visit our COVID-19 page.

Attorney General Claims Local Orders Closing Schools Are Invalid. Tarrant County Abandoning Order?
Holly James, Senior Associate

Attorney General Ken Paxton issued an opinion today regarding the legality of local public health orders that delay the start of in-person schooling, such as those entered in Dallas, Harris, Travis, and presumably Tarrant Counties.  The Attorney General opined that “nothing in the law gives health authorities the power to indiscriminately close schools—public or private—as these local orders claim to do.”  Specifically, the AG claims that the county orders impose a quarantine on property (the school buildings), which is not authorized under the Texas Health and Safety Code without evidence that the property is contaminated or that individuals within the building are actually infected with a communicable disease.  The AG’s opinion does not address the authority of local health authorities to implement restrictions on individuals within the county.

Please click here to continue reading.

FAPE and Transportation
Rhonda Crass, Shareholder

In these ever-changing times during the pandemic, some Districts are discussing staggering students’ arrival and departure times during the 2020-21 school year to prevent the spread of COVID-19. If your District is considering this option, you should be mindful of how this may affect students with disabilities.

The law is clear that a District cannot shorten the school day for students with disabilities solely for transportation purposes.

Please click here to continue reading.

Filed Under: Blog, COVID-19, Section 504, Special Education, Students

July 28, 2020 By LeasorCrass

FAPE and Transportation

Rhonda C. Crass
by Rhonda Crass

In these ever-changing times during the pandemic, some districts are discussing staggering students’ arrival and departure times during the 2020-21 school year to prevent the spread of COVID-19. If your district is considering this option, you should be mindful of how this may affect students with disabilities.

The law is clear that a district cannot shorten the school day for students with disabilities solely for transportation purposes.  The problem is that most of the caselaw regarding shortening a student’s school day was decided long before the COVID-19 pandemic required districts to adopt new transportation safety protocols. So, should the transportation department and special education directors be worried about making sure students with disabilities do not end up with shortened school days due to modified transportation practices?

Differences in the length of the school day for students with disabilities and their nondisabled peers can amount to disability discrimination under Section 504.  While the Centers for Disease Control and Prevention recommends that staggering arrival and departure times may be the best option for some districts, districts need to be aware of how such an arrangement might affect a student’s right to FAPE if students with disabilities do not receive instruction or necessary services because of a shortened school day.   If the school is staggering its entire schedule because of social distancing or transportation needs, and the students with disabilities get all of their services, just on a different schedule, this might not open the door to compensatory education.

If you have any questions about this or any other matter, please feel free to contact any of the attorneys at Leasor Crass.

 

Filed Under: Blog, COVID-19, Section 504, Special Education

July 28, 2020 By LeasorCrass

Attorney General Claims Local Orders Closing Schools Are Invalid. Tarrant County Abandoning Order?

by Holly James

Attorney General Ken Paxton issued an opinion today regarding the legality of local public health orders that delay the start of in-person schooling, such as those entered in Dallas, Harris, Travis, and presumably Tarrant Counties.  The Attorney General opined that “nothing in the law gives health authorities the power to indiscriminately close schools—public or private—as these local orders claim to do.”  Specifically, the AG claims that the county orders impose a quarantine on property (the school buildings), which is not authorized under the Texas Health and Safety Code without evidence that the property is contaminated or that individuals within the building are actually infected with a communicable disease.  The AG’s opinion does not address the authority of local health authorities to implement restrictions on individuals within the county.

The AG further opines that because conditions related to the COVID-19 pandemic are present throughout the affected counties, not just the schools, the local public health authorities cannot impose restrictions that only affect schools.   The AG also claims that Governor Abbott’s Executive Order GA-28 allows schools to operate subject only to TEA’s guidelines, and that GA-28 supersedes any conflicting local order.

Interestingly, while the opinion declares that local health authorities cannot issue blanket orders closing schools in their jurisdiction on a prophylactic basis, it also notes that “[t]he decision to close schools on such a preventative basis—whether public or private—remains with school system leaders who should consult with relevant public health authorities, including the Department and local health authorities.”

What does this mean for school districts?  Nothing for the moment.  The Attorney General’s opinion is not a binding document.  It does not overturn the county orders currently in place, so districts subject to those orders still need to comply with them as long as they remain in effect.  Practically speaking, the AG’s opinion may prompt local health authorities to rescind their orders if they believe the AG is correct or could lead to the filing of lawsuits against local health agencies to overturn the orders.  It could also prompt Governor Abbott to issue an executive order superseding those county orders.  For now, school districts should operate in compliance with their local county orders, but be prepared to pivot as needed if the orders get overturned or rescinded.  This, we know, is an exercise districts have been engaged in for many months, as orders and guidance from the state are issued, changed, and changed again.  We wish we had the ability to stop the cycle and give you certainty.  Unfortunately, all the AG’s opinion did today was put more uncertainty on the plates of school districts, which will remain until a court weighs in on the debate.

**Update: According to the Fort Worth Star Telegram, Tarrant County is abandoning its order requiring schools to remain closed until September 28th in light of the Attorney General’s opinion issued today.  As of the time of this writing, we have not been able to locate an official statement or other confirmation from Tarrant County regarding this decision and the status of its order.  If this report is accurate, then school districts in Tarrant County should follow TEA’s guidance regarding the timeline for reopening schools.

Filed Under: Blog, COVID-19, Students

June 9, 2020 By LeasorCrass

TEA Special Education and Special Populations Updates for the Week of June 1, 2020

Dean Micknal
by Dean Micknal

Updates to the Texas Education Agency’s Special Education and Special Population sections of the COVID-19 Support webpage last week were limited to the release of a single, if thorough, Guidance and FAQ regarding Continuity of Learning for Secondary Transition.  The nine-page document walks through the following topics:

  • Transition Services During COVID-19;
  • Guiding Questions for Secondary Transition Considerations;
  • Examples of Transition-Related Activities for At-Home Learning;
  • Frequently Asked Questions (FAQ); and
  • General Resources for Families and Educators

The guidance reminds districts that they must continue to monitor all secondary transition services/activities through progress reports aligned to a student’s IEP goals and should make reasonable efforts to provide individualized transition support for students with disabilities beginning at age 14 through age 21 in an at-home learning environment during COVID-19-related school interruptions. TEA also extends its guidance regarding compensatory services to transition services, encouraging districts to utilize ARD committees to address student-specific needs resulting from the closure once school resumes.

Please don’t hesitate to contact Leasor Crass, P.C. if we can provide further assistance on these matters.

Filed Under: Blog, COVID-19, Section 504, Special Education, Students

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LEASOR CRASS, P.C. Blog

Here at Leasor Crass, we are keeping a close eye on the bills being filed for the upcoming Texas legislative session which will either directly affect or have some impact on our clients. Filed on December 30, 2020, Senate Bill 272 really caught our attention. It requires a school district board … Read More

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