Month: March 2020

On March 25, the Ohio General Assembly passed Am. Sub. H. B. 197, a wide-ranging bill to address the COVID-19 pandemic. The bill will become effective immediately upon the signature of Governor DeWine and he stated he will sign the bill tomorrow, March 27, 2020. Many of the new law’s provisions impact schools and how they operate during the pandemic emergency.

Schools May Adopt or Amend Plans to Make up Lost Hours

Current law permits school districts to adopt plans each year to make up hours in that school year during which it is necessary to close. Districts can make up the equivalent of three school days by providing online lessons or “blizzard bags.” HB 197 provides districts the option to adopt or amend a plan to make up any number of hours for the 2019-2020 school year during which schools were closed in compliance with the Director of Health’s order, local board of health order, or an extension of an order.

Board Meetings May Be Held by Teleconference and Video Conference

During the emergency, public bodies, including boards of education, may conduct meetings and hearings by teleconference, video conference, or other similar electronic technology. Board members who attend in this manner are considered present as if in person at the meeting, may vote, and are counted for purposes of determining quorum. The law provides that any resolution, rule or formal action of any kind shall have the same effect as if it had occurred in an open meeting or hearing of the public body. Public bodies must provide 24 hours’ notice of a meeting by reasonable methods to the public and to media that have requested notification.  The notice must include the time, location, and the manner by which the meeting will be conducted. Public bodies must provide public access to a meeting by live streaming on the internet, local radio, television, call in information for a teleconference, or any other similar electronic technology.

No Statewide Assessments or Report Card Grades or Rankings for 2019-2020

Districts do not have to administer any statewide assessments this school year. ODE will not assign grades on report cards or rankings, but will still publish data regarding school performance.

Superintendent of Public Instruction Authority to Waive or Extend Deadlines

The new law provides authority to the Superintendent of Public Instruction to waive or extend various deadlines, including deadlines related to the following: school personnel evaluations, nonrenewal deadlines, school safety drills, emergency management tests, filling board vacancies, updating teacher evaluation policies to conform to the OTES 2.0 framework, and identification and screening of gifted students.

Teacher Evaluations

The new law prohibits the use of value-added progress dimension data from the 2019-2020 school year to measure student learning attributable to the teacher being evaluated. Under the new law, districts may elect not to conduct an evaluation of an employee of the district for 2019-2020, if the district board determines that it would be impossible or impracticable to do so.

High School Seniors Can Still Graduate

Boards may grant diplomas to high school seniors who were on track to graduate or complete their IEP prior to school closure. The school principal, in consultation with the student’s teachers and counselors, reviews the student’s progress toward meeting the requirements for a diploma and determines whether the student had successfully completed the curriculum in the student’s high school or the student’s IEP at the time of the closure.

Providers Can Offer Telehealth to Students

Intervention specialists, and individuals licensed by the Ohio Speech and Hearing Professionals Board, Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board, the State Board of Psychology, and the Counselor, Social Worker, and Marriage and Family Therapist Board are specifically authorized to provide services via electronic delivery method or telehealth communication to students who had received these services through their school districts prior to the Director of Health’s order.

Absentee Voting Is Extended Until April 28

Absentee voting for the March 17, 2020 election has been extended until April 28, 2020. Individuals must have registered to vote by February 18, 2020 to be eligible to vote in the election.

EdChoice

The Department of Education will only award first-time performance-based EdChoice Scholarships for the 2020-2021 school year to a student: (a) whose sibling received a performance-based scholarship in the 2019-2020 school year, (b) who is enrolled in, or would be enrolled in, a school building that satisfied the conditions for eligibility for performance-based scholarships in the 2019-2020 school year, and (c) who was enrolled in a public or nonpublic school in any of grades K-12 or was homeschooled for the equivalent of those grades for the 2019-2020 school year, or will be enrolled in kindergarten in a public or nonpublic school or will begin homeschooling for the equivalent of kindergarten in the 2020-2021 school year.  The Department of Education will begin processing EdChoice applications for the 2021-2022 school year on February 1, 2021.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Please note that this new law supplements and supersedes prior updates. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phone, at (614) 222-8686, or via email.

FERPA and Virtual Learning Related Resources

The Student Privacy Policy Office has provided links to resources that address distance learning and the Family Educational Rights and Privacy Act (FERPA). That listing of resources can be found here.

Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities 

On March 21, 2020, the Office for Civil Rights (OCR) and Office for Special Education and Rehabilitative Services (OSERS) published a supplemental fact sheet to previous guidance given.

OCR and OSERS addressed a concern that some in the educational community had raised that because it would be so difficult to serve children with disabilities under the law, they should consider not providing any educational services to any students. They wrote, “To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.”

OCR and OSERS reiterated that school districts must provide a free appropriate public education consistent with the need to protect the health and safety of students with disabilities and those providing the education. They recognized that schools may not be able to provide all services identified in an IEP as they typically would and that some services, such as physical therapy, occupational therapy or tactile sign language, would be difficult to provide online. But they also reminded school districts that federal disability law allows flexibility when determining how to meet the needs of the individual student.

Importantly, OCR and OSERS also provided guidance on IDEA timelines. For the first time, OCR and OSERS addressed changes to a student’s IEP, and wrote, “Most importantly, in making changes to a child’s IEP after the annual IEP Team meeting, because of the COVID-19 pandemic, the parent of a child with a disability and the public agency may agree to not convene an IEP Team meeting for the purposes of making those changes, and instead develop a written document to amend or modify the child’s current IEP. 34 C.F.R. §300.324(a)(4)(i).”

The supplemental fact sheet may be found here.

Previous Guidance can be found at Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students (March 16, 2020); OCR Short Webinar on Online Education and Website Accessibility Webinar (Length: 00:07:08) (March 16, 2020); Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak (March 12, 2020); Fact Sheet: Impact of COVID-19 on Assessments and Accountability under the Elementary and Secondary Education Act (March 12, 2020); and Letter to Education Leaders on Preventing and Addressing potential discrimination associated with COVID-19.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phone, at (614) 222-8686, or via email.

This afternoon, a Stay at Home Order (“Order”) was issued by Dr. Amy Acton, Director of the Ohio Department of Health, mandating residents stay at home and non-essential businesses close except as otherwise provided in the Order.  The Order will take effect at 11:59 p.m. EDT on Monday, March 23, 2020 and remain in effect until 11:59 p.m. EDT on April 6, 2020 unless it is rescinded or modified prior to its expiration.

Educational institutions (including public and private pre-K-12 schools, colleges, and universities) are defined as exempt essential businesses. The prior order regarding closure of schools remains in effect. Below, we highlight relevant portions of the Order.

Leaving Home for Essential Activities is Permitted

Employees are authorized to leave their residences to perform essential activities, including performing work for a school.  Under the Order, each school district should determine its essential functions and identify employees and/or contractors necessary to perform these functions. Employers are to allow as many employees as possible to work from home.

Individuals are permitted to travel to schools to receive materials for distance learning, to receive meals, and for other similar services.

Providing Food Services is Still Permitted

Schools may continue providing meals to those in need, so long as the food is provided on a pick-up and takeaway basis only. Districts may not permit food to be eaten at the pick-up site or any other gathering site.

Minimum Basic Operations are Permitted to Maintain School Districts

The Order permits employees to perform activities necessary to maintain the condition of the school district (e.g., processing payroll and other employee benefits, paying bills, indoor and outdoor maintenance) and to facilitate the district’s remote work (e.g., administrative and/or technology functions that can only be performed on site) so long as they follow social distancing requirements.

Playground Closure

The Order mandates the closure of children’s play centers and playgrounds.  Districts whose playgrounds are used by the public should post signage advising the public of this closure.

Social Distancing Requirements

When your district engages in the activities described above, it must adhere to social distancing requirements. This includes: (1) designating six-foot distances with signage, tape, or by other means for customers and employees to maintain appropriate distance; (2) having hand sanitizer and sanitizing products readily available for employees and customers; (3) implementing separate operating hours for elderly and vulnerable customers; and (4) posting hours online and indicating how best to contact the district.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

This afternoon, the Ohio Department of Education posted Considerations for Students with Disabilities During Ohio’s Ordered School-Building Closure. That document can be accessed here.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

Office for Civil Rights Fact Sheet

On March 16, 2020, the Office for Civil Rights (OCR), U.S. Department of Education posted “Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students.” In this fact sheet, OCR reminds school districts to address reports of bullying and harassment and not to discriminate on the basis of race, color, or national origin when serving students. OCR also provides guidance on serving students with disabilities. Similar to previous guidance from the U.S. Department of Education, OCR provides that if school is open and serving other students, the school must ensure that the student with disabilities continues to receive a free appropriate public education, consistent with protecting the health and safety of the student and staff. OCR suggests that IEP and 504 teams determine if some, or all, of the student’s identified services can be provided through alternate or additional methods. Accessible technology should also be considered.

OCR states that if a disabled student does not receive services after an extended period of time, the student’s IEP or 504 team will need to make individualized determinations about whether compensatory services will be needed and to what extent, including to make up for any skills that may have been lost.

OCR also provides guidance about IEP and 504 meetings, 504 evaluations and ETRs. OCR provides that IEP and 504 teams do not need to meet in person while schools are closed. If a student’s evaluation requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. Evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, provided the student’s parent or legal guardian consents.

Office for Civil Rights Webinar

On March 16, 2020, OCR also posted a short webinar on online education and physical accessibility. This webinar reminds schools that accessible technology should be provided to disabled students.

The Fact Sheet and Webinar can be accessed at USDOE COVID-19 Information and Resources.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

Open Meetings 

On March 13, 2020, Ohio Attorney General David Yost issued a letter to local officials regarding Ohio’s Open Meetings Act (OMA), R.C. 121.22, during the COVID-19 emergency. During this emergency, Attorney General Yost stated public bodies, including boards of education, temporarily may use electronic means to comply with the law. Relying on the Ohio Department of Health’s order prohibiting mass gatherings, Attorney General Yost concluded “it is reasonable to read the OMA’s ‘in person’ requirement as permitting a member of a public body to appear at a public meeting via teleconference.”

Attorney General Yost cautions if one or more members of a public body choose to appear at a meeting remotely, all other OMA obligations must be fulfilled. This includes having a quorum present. Yost also advises if a member participating by telephone is cut off, the body should “cease all discussions and deliberations until the member can be reconnected.” As a practical matter, we suggest any board of education considering electronic meetings in whole or part should designate an employee to monitor remote participation for any interruptions.

In his letter, Attorney General Yost also reaffirmed boards of education and other public bodies may make meetings open to the public by live-streaming through the internet or on television. Here, Yost cautioned any public body doing this must ensure the public can “hear the discussions and deliberations of all of the members, even those who are present by telephonic means.” (Emphasis in original.) Yost further notes all other OMA requirements, such as those concerning public notice, executive session and the taking of minutes, continue to apply.

OHSAA 

The Ohio High School Athletic Association has published “OHSAA Spring Sports Q’s and A’s (Practices, Contests, Tournaments)” concerning interscholastic athletics during the COVID-19 emergency. You can access the document here.

OHSAA has directed a no-contact period, which is in effect for spring sports beginning on March 17, 2020 and continuing through at least April 5, 2020. During this time, no OHSAA member schools may conduct practices or participate in scrimmages or contests. Practices tentatively are scheduled to resume on April 6, and scrimmages and/or contests on April 11. School facilities “SHALL NOT” be used for athletic activities, and school coaches may not provide individual skill/coaching instruction to student-athletes. Schools are “HIGHLY ENCOURAGED TO CANCEL” out-of-state spring break trips, and OHSAA cautions practices and/or contests for spring sports led by parents, coaches and/or students are “HIGHLY DISCOURAGED” at this time. Finally, during the no-contact period, student-athletes may not participate with a non-school club or travel team if they already have participated in an interscholastic scrimmage or contest.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phone, at (614) 222-8686, or via email.

This afternoon, the Ohio Department of Education posted Coronavirus (COVID-19) Frequently Asked Questions (FAQ) for Ohio’s Schools and Districts. That FAQ can be accessed here. As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here. This communication is intended as general information and should not be relied upon as legal advice. If advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

FERPA & Coronavirus

Earlier this week the U.S. Department of Education’s Student Privacy Policy Office issued an FAQ regarding FERPA and COVID-19.  The Guidance reminds school districts that educators cannot release a student’s education records or personally identifiable information contained within those records without the signed and dated consent of the student’s parent (or the student, if the student is 18), unless an exception applies.  The FAQ describes the “health and safety exception” that permits a school district to disclose to a public health agency personally identifiable information from education records, without prior consent, in connection with an emergency if the public health agency’s knowledge of the information is necessary to protect the health or safety of students or other individuals.

FERPA & Coronavirus Disease 2019 FAQ

Implementing IDEA and Section 504 During COVID-19 Outbreak 

The U.S. Department of Education issued a new Q & A document on providing services to children with disabilities during the outbreak.  The guidance advises that if a school district closes and does not provide any educational services to the general student population, it would not be required to provide services to students with disabilities during that period of time.  The Department makes clear that once school resumes, IEP teams and 504 teams will need to make individualized determinations as to whether compensatory services are needed.  For school districts providing educational opportunities during a closure, the Department expects schools will ensure that students with disabilities will have equal access to the same opportunities.  This includes providing regular and special education and related aids and services to meet the individual educational needs of disabled students as adequately as the needs of nondisabled students are met when educational opportunities are provided.

Q & A on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak

This Legal Update is intended as general information and should not be relied upon as legal advice. If advice is required, please contact us at (614) 222-8686 or via email.

Dear Clients and Friends,

We know you are getting inundated with emails about COVID-19 (Coronavirus). Some of those emails are out-of-date right after they hit your inbox. Our goal with this Legal Update is to provide you with information directly from government officials along with our analysis.

School Closures and Alternative Learning Options 

During his press conference on March 12, 2020, Governor DeWine announced Ohio schools would be closed to children beginning at the end of the school day on March 16 and through April 3. He later put out a press release that provided additional details about the closings:

Ohio Governor Mike DeWine has announced that due to the ongoing
COVID-19 crisis, he has ordered that all kindergarten through 12th grade schools close for a period of several weeks.

Beginning at the conclusion of the school day on Monday, March 16,
all K-12 schools will close to students through Friday, April 3. This order includes all public, community, and private K-12 schools in the state, but does not apply to Ohio’s childcare system such as daycare centers and home-based childcare providers.

During this extended period of closure, schools should work to provide education through alternative means and school district leadership may make decisions on whether to use their school buildings. Staff members should continue to report to school as directed by administrators.

“We want to thank educators and administrators for the extraordinary efforts they will take to continue offering services during this time of national crisis,” said Governor DeWine.  Over the next 72 hours, the Ohio Department of Education will develop guidance for K-12 schools to ensure the continuity of important student services, including a strategy for providing meals.

News Release – Governor DeWine Announces School Closures

School leaders will have to make decisions that are right for their students, staff and community as to whether they will use calamity days during this school closure time, roll out distance teaching and learning for their students, or use a combination of both. As you consider these options, keep in mind the following:

Calamity Days

Currently, public school districts are required to provide students with a minimum number of hours of instruction each school year. Pursuant to R.C. 3313.48, the minimum hours are 455 for half-day kindergarten, 910 for full-day kindergarten and grades 1-6, and 1,001 for grades 7-12. Districts that put plans in place before the beginning of the school year may provide up to three (3) days of instruction through online course materials or “blizzard bags” when schools are closed. R.C. 3313.482. Governor DeWine suggested the General Assembly may take emergency action waiving or suspending minimum hour and testing requirements. There has been no resolution of these issues at this time.  Because this is a rapidly evolving situation, school officials are well-advised to make alternative learning plans, monitor legislative developments and consult board counsel with specific questions.

R.C. Sections 3319.08(B) and 3319.081(G) provide for the payment of teaching and nonteaching employees for all time lost due to an epidemic or other public calamity. Collective bargaining agreements and board of education policies may include additional provisions related to paying employees on calamity days, specifically those who are required to report to work.

Alternative Learning Environments 

Some school districts may choose to use all or some of this time to train staff on alternative learning options and to deliver that instruction. Districts that choose this option should consider how they will communicate with their staff about expectations to report to work, how and where they will deliver professional development to staff, what their goals are for that instruction and how that instruction will be delivered to their students.

Finally, school officials should review the continuity of the operations section of their emergency management plan and remain in close contact with their county health department when planning for alternative learning and other next steps.

Order to Limit and/or Prohibit Mass Gatherings

Many school districts already have made difficult decisions to cancel their extra-curricular and sporting events. If you are still considering how to address these events, please be aware the Ohio Director of Health issued an order on March 12, 2020. This order restricts “mass gatherings” throughout the State. A “mass gathering” is defined as any event or convening of more than 100 people in the same room at the same time. This includes interscholastic sporting events with spectators, but it specifically does not include schools and gatherings involving the exercise of First Amendment protected speech.

Ohio Department of Health Order on Mass Gatherings

School Travel and Trips 

Schools are also faced with difficult decision about cancelling school trips.  The Centers for Disease Control (CDC) has information about travel available on its webpage. If your district has cancelled planned trips, you should review trip vendor contracts for refund terms. You also should determine if you have travel or credit card insurance that may provide coverage for cancellation costs. You also should consult your liability insurance provider about whether group trips continue to be insurable.

School Board Meetings 

Yesterday, Ohio Attorney General David Yost also announced during a press conference that he is of the opinion that during the Coronavirus emergency, boards of education and other governmental bodies may meet without admitting members of the public. If a board chooses to do this, it must provide another means of public access, such as a live video feed of its meeting. Attorney General Yost suggested this is a temporary opinion. Yost also clarified that the Open Meetings Act, R.C. 121.22, continues to require boards to physically meet in person. Boards cannot conduct meetings online or by phone, and ill members may not participate in meetings remotely. 

This Legal Update is based on current information. The issues addressed here are fluid and subject to rapid change. As this situation evolves, additional information about Coronavirus and the State’s response can be found here.

This Legal Update is intended as general information and should not be relied upon as legal advice. If advice is required, please contact us at (614) 222-8686 or via email.