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.

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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.

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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.

After a busy previous week focused on Extended School Year and Compensatory Services, the Texas Education Agency did not issue any updated guidance to the Special Education section of the COVID-19 Support webpage last week. While there were no updates exclusive to the Special Education section, TEA did issue a comprehensive six-page guidance in response to Governor Abbot’s May 18^th Executive Order GA-23 regarding Summer Instruction, Activities and School Visits that has significant implications for Special Education departments that are considering how and when to begin opening back up for in-person evaluations, instruction and services.  Additionally, the Guidance could prove very informative should TEA use it as a blueprint and/or basis for operations this coming Fall.

As an initial matter, TEA has mandated that “[s]ummer school attendance in person at school must be optional for students.” This means that districts are strictly prohibited from requiring in-person attendance.  TEA has also cautioned that districts must limit in-person attendance to “[n]o more than eleven individuals…in an enclosed area together regularly.”  TEA specifically notes that this includes “teachers, staff, and students”, which could restrict the ability to implement IEPs that require multiple service providers.

The guidance includes eight detailed Operational Considerations, including mandates that:

• all instruction should to be held in spaces that allow desks to be placed at least six feet apart;
• multiple groups of eleven in shared spaces must be kept separated by an empty space of at least 30 feet;
• field trips and other group gatherings observe the eleven person/30 foot rule; and
• districts give preference to gathering students outside rather than inside.

It is also important to note that TEA has recognized that the Operational Consideration prohibiting group or pair work that would require students to regularly interact within six feet “may not be possible for early childhood students and some students with disabilities”

However, one of the more pressing issues for special education may prove to be the Operational Considerations related to maintaining consistent groupings of people to minimize virus spread in the school. As an example, TEA explains:

[A] positive COVID-19 case in a school will require two-week closure of the individual’s class group. If, for example, three classes are taught by a single science teacher, and a student in one of those classes contracts COVID-19, all three classes are considered a single class group for purposes of potential exposure, because they all have extended exposure to an individual who could spread the virus.

This could prove to be logistically challenging and require careful reconsideration with respect to inclusion services. Even though a self-contained classroom would theoretically fair well under the guidance, schools will need to consider the effect of having related service providers access multiple classrooms and/or inadvertently acting as bridges between multiple learning environments.

TEA also issued new guidance on May 19^th to its Special Populations webpage regarding Child Abuse, Neglect, and Human Trafficking. Districts are strongly encouraged to review this guidance, as it identifies “additional circumstances and considerations, in light of the COVID-19 pandemic” of which district staff should be made aware. These include pandemic-related circumstances that can make students more susceptible to child abuse, neglect, or trafficking; identifying and reporting child abuse and neglect during the pandemic; and additional risks or dangers related to distance learning.

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