Update: Lame Duck Legislation

Continuing our tour around the legislation passed in the lame duck, session, please find below a summary of recently passed legislation. After the governor signs a bill, it becomes effective 90 days later, so most of these will be effective generally in mid-March. If you have further questions about the provisions of the bills in this summary, please give us a call.

HB 48 / SB 199, Firearms in Safety Zones: HB 48 contained provisions to remove concealed-carry prohibitions in certain areas including school safety zones, daycare facilities, college campuses, aircraft, and public areas of airport terminals. During the lame duck session, HB 48 was rolled into SB 199, which was signed by the governor on December 19.

HB 89, Medicaid School Program: On December 19 Gov. Kasich signed this bill, which establishes that Ohio is in compliance with federal Medicaid regulations and may continue to receive federal reimbursements to the Medicaid in Schools program. It does this by clarifying that occupational and physical therapists, audiologists, and speech pathologists are defined as “licensed practitioners of the healing arts” for purposes of making referrals for services if they have a provider agreement. These therapists may be referring or ordering-only providers.

HB 410, Truancy: The final version of this legislation was delivered to the governor for signature on December 27.  After July 1, 2017, schools may not suspend, expel, or remove a student under the disciplinary code solely because the student has been absent from school without excuse. Truancy is handled as follows:

  • The designation of “chronic truant” will no longer be used.
  • The designation “habitual truant” will apply for any of the following unexcused absences:
  • 30 or more consecutive hours
  • 42 or more hours in a month
  • 72 or more hours in a year
  • Districts are required to provide written notice to parents within seven days of a child’s unexcused absences of 38 or more hours in a month or 65 or more hours in a school year.
  • Absence intervention teams consisting of an administrator, a parent, and a school staff member will be formed upon designating a student as a habitual truant. Written notice to the parents of the development of the plan will be provided within seven days.
  • Truancy was removed from the statute that requires boards to adopt a zero-tolerance policy for violent, disruptive, or inappropriate behavior and from the reasons for Big 8 schools to send students to alternative schools.
  • Districts with a truancy rate of 5 percent or less on the most recent report card are exempt from assigning habitually absent students to absence intervention teams and may develop their own district strategies.
  • If the absence intervention plan or other alternatives fail, the attendance officer must file a truancy complaint on day 61 after the plan has failed and the student has refused to participate in or otherwise failed to make satisfactory progress on the plan.
  • Extensive changes were made to juvenile court law regarding unruly and delinquent dispositions and diversion programs for truancy.
  • Suspensions may not be carried over to the next school year for any type of student misconduct.
  • Alternative punishments such as community service may be imposed during the summer for the number of hours equal to the remaining part of a suspension if fewer than 10 days of school remain when a suspension is imposed; however, any remaining community service may not be made up via suspension when the next school year begins. Other alternatives are permitted, and community service must begin during the first full week of summer break.
  • Districts may allow students to make up missed homework during a suspension.
  • Skipping school may not be punished by suspension.
  • A pilot program will be created to study reasons for truancy and to evaluate interventions. The ohio Family and Children First Cabinet Council will accept applications from districts to participate in the pilot program in 2017–18 and 2018–19.
  • Districts must adopt a new or amended policy to guide employees in addressing student absences effective the beginning of the 2017–18 school year and must include applicable intervention strategies, including an absence intervention plan, truancy prevention mediation programs, requiring parents to attend parent involvement programs, filing a truancy complaint in juvenile court, and notifying the registrar of motor vehicles.

HB 438, Public school teacher appreciation: This bill passed in Senate 31-0 and was delivered to Gov. Kasich for his signature on December 29. This bill designates the week prior to the week of Thanksgiving Day as “Ohio Public Education Appreciation Week.” Additional provisions require school health curricula to include instruction on the positive effects of organ and tissue donation, permit districts not evaluate to counselors on extended leave or retiring, and modify timelines for sale or lease of district property.

HB 512, Water systems: HB 512 was signed in June and became effective in September. The new law provides grants for lead fixture replacement in eligible schools.

SB 3, Education deregulation: See previous blog post.

SB 235, Property tax exemption: This bill provides a property tax exemption for the increased value of property for commercial and industrial development until the facility is completed. A substitute bill passed in the Senate 29-2. It allows the tax exemption for 6 years (instead of 10 years) and includes a recoupment provision that goes back 3 years if property is not developed but is subsequently sold when the value increases. Multiple amendments were added to the bill during the lame duck session, including several provisions from other bills that were not moving. Gov. Kasich signed the bill on December 27; however, he used his line-item veto power to veto provisions that allowed tax breaks for oil and gas producers and for digital entertainment downloads.

  • Tax-related amendments:
  • Allow land in a downtown redevelopment district to get tax increment financing
  • Allow the four highest-ranked projects (instead of top two) to get a catalytic certificate under the Ohio Historic Preservation Tax Credit Program (tax credit up to 25 percent of rehab costs, capped at $5 million unless it’s a catalytic project)
  • Allow a multi-year production (such as TV series) that gets Ohio’s motion picture tax credit to be first for consideration of credit the next year
  • Unemployment-related amendments:
  • Freeze benefits for unemployed workers from 2018–2019 while taxable wage base on employers will increase from $9K to $9.5K over the same time (from HB 620)
  • Repeal automatic tax increase on business if the state is forced to borrow from the federal government to cover the cost of high unemployment benefits (from HB 390)
  • Other amendments:
  • Adopt recommendations of the Net Operating Loss Study Committee
  • Exempt small business investment companies from the Financial Activities Tax (from HB 592)
  • Update pawnbroker regulations (from SB 270)
  • Prohibit bestiality (from SB 195)
  • Increase regulations on cockfighting and bearbaiting (from HB 215)
  • Prohibit poultry from running onto neighboring properties
  • Clarify that rock-climbing walls are not state-regulated amusement rides
  • Vetoed amendments – added by legislature but rejected by Gov. Kasich when he signed the bill:
  • (Vetoed) Exempt tangible personal property used for oil and gas manufacture from the sales tax
  • (Vetoed) Exempt digital jukebox downloads from sales tax

SB 252, Cardiac arrest in student athletes, “Lindsay’s Law”: Gov. Kasich signed this bill on December 13. Coaches and trainers are required to annually participate in a training course on recognizing the symptoms of sudden cardiac arrest. Before participation, student athletes must submit a medical history form and a signed authorization that they received or reviewed information on sudden cardiac arrest for each athletic activity in which they participate.

Students whose biological parent, sibling, or child has experienced sudden cardiac arrest may not participate in athletic activities until the athlete has been cleared by a physician. Students who have exhibited syncope or fainting prior to or following an athletic activity also may not participate until cleared by a physician and must be removed from participation if this occurs, until cleared. Schools must establish penalties for coaches that fail to enforce the requirements outlined above.

Civil immunity will be granted to coaches, school districts, board members, or employees (immunity provision also applies to nonpublic, charter, and STEM schools) for performing duties as outlined in the law, unless their conduct or omission was willful or wanton misconduct. The Ohio Department of Health will approve a sudden cardiac arrest training course for coaches.

A Closer Look at “Education Deregulation” in Senate Bill 3

What happened during the lame duck session?

By now, you know the legislative session has concluded. Sub. SB 3, which became a Christmas tree bill, contained a plethora of miscellaneous education provisions. The bill has been signed and will become effective mid-March. I thought you might like a short summary of the provisions that will apply to most of our clients. If you have specific questions about what is applicable to career technical education or educational service center districts, please let us know. I will follow up next week with a look at other recently passed bills.

 Time Spent on State Assessments

After July 1, 2017, boards of education must ensure that no student is required to:

  1. Spend more than 2 percent of the school year taking state assessments in 3301.0710(A) and 3301.0712(B)(2) or any district-wide assessment in subject area or grade level.
  2. Spend more than 1 percent of the school year taking practice or diagnostic assessments to prepare for assessments described above.

This limitation does not apply to students with disabilities or to students who don’t obtain a passing score on English language arts achievement assessments, substitute exams, or additional assessments to identify a student as gifted.

Boards may exceed these limits upon a resolution of the board after “at least one” public hearing on the proposed resolution.

The bill removed a requirement that districts report to the Ohio Department of Education (ODE) the amount of extracurricular services offered to students.

Education Deregulation Provisions

 Districts that qualify are exempt from:

  1. Teacher qualification requirements under the 3rd-grade reading guarantee of 3313.608. Teachers still must have a valid Ohio license in the subject area and grade level “determined appropriate by the board of education.”
  2. The mentoring component of the Ohio teacher residency program, as long as there is a local approach to train and support new teachers.
  3. Any statute, ODE rule, or standard on minimum or maximum class size.
  4. Any Revised Code or ODE standard requiring teachers to be licensed specifically in the grade level they are teaching unless required by federal law. This does not apply to special education teachers. Teachers still must have a valid Ohio license in the subject area and “at least some grade level determined appropriate by the district board.”

Notwithstanding 3319.36 and 3319.30, a superintendent may employ a person not licensed but otherwise qualified based on experience to teach in the district, provided that the board of education approves employment and provides mentoring and development opportunities as determined necessary. These employees must have criminal background checks and register with ODE during employment. ODE will enroll these employees in the retained fingerprint database. These employees are members of the State Teachers Retirement System. If arrested, ODE will notify the district, and the district may not employ anyone with an offense that would bar employment with the school as listed in R.C. 3319.31. Noncompliance with this section of the law will not disqualify this district from R.C. Chapter 3317 funds.

To qualify for these exemptions, districts must meet all the following benchmarks on the most recent report card:

  1. At least 85 percent of total possible points for performance index score
  2. An A on performance indicators on the state report card as defined in R.C. 3302.03
  3. A four-year adjusted cohort graduation rate of 93 percent and a five-year adjusted cohort graduation rate of 95 percent

Districts that meet the qualifications on the most recent report card get these exemptions for three years, beginning with the year the qualifying report card is issued.

Competitive bidding: Sub. SB 3 contains a provision that raises the competitive bidding threshold from $25,000 to $50,000. Check your policy to see if it mentions the specific amount, and if so, revise the policy. Remember that this change will not take effect until the legislation effective date in mid-March, so continue to use the $25,000 threshold until the bill becomes law.

Blizzard bags: Districts adopt a plan for the use of blizzard bags, and the board-adopted plan no longer has to be approved by ODE. Otherwise the requirements are the same.

Nonpublic extracurricular activities: The superintendent may allow any student enrolled in nonpublic school to participate in district extracurricular activities if they are not offered at the nonpublic school and either of the following apply:

  1. The extracurricular activity is not interscholastic athletics or interscholastic contests or competition in music, drama, or forensics, or
  2. The activity is in an interscholastic athletic or contest or competition in music, drama, or forensics.

That is not a typo (see options above). The law says that for the second option to apply, students must seek to participate at either the district in which the student’s nonpublic school is located or the district in which the student is entitled to attend school (understanding that the district in which the student’s nonpublic school is located may not be the same as the district in which the child is entitled to attend school). As long as the chosen district offers the activity, if the student seeks to participate at the public school in which the student’s nonpublic school is located, both of the following must apply:

  1. The superintendent of the school in which child is entitled to attend shall certify that the student has not participated in any other extracurricular activities that school year, defined as interscholastic athletic events or interscholastic competition in music, drama, or forensics. If the student has participated that school year, the student is ineligible to participate in the district in which the nonpublic school is located.
  2. Superintendents of both schools shall mutually agree in writing to allow the student to participate in the public school in which the student’s nonpublic school is located.

Athletic participation for College Credit Plus (CCP) and STEM students: Students cannot be denied the opportunity to participate in athletics just because the student is in CCP or has been in CCP as long as the student fulfills all other academic/nonacademic/financial requirements not related to participation. This provision also applies to CCP students who attend STEM, community schools, nonpublic schools, or home instruction.

Seal of biliteracy: A new section of the Revise Code provides for the addition of a seal of biliteracy, attached or affixed to a high school diploma. The seal demonstrates a high level of proficiency in one or more languages in addition to English “sufficient for meaningful use in college and a career.”

Public schools, STEM schools, community schools, college preparatory boarding schools or nonpublic schools may affix the seal of biliteracy to transcripts that meet requirements, but it is not required to attach the seal to the transcript.

Districts must maintain records to identify students who have completed the requirements for the seal, and if the district has a policy of attaching or affixing the seal to transcripts, the district shall make a designation on the transcript.

The state board will establish requirements and criteria for earning the state seal, including foreign language assessments and English proficiency.

The state board will deliver an appropriate mechanism for assigning the seal to districts, provide any other information the state board considers necessary for districts, and adopt rules to implement this provision.

No fee is allowed for the seal, but students may be required to pay a fee to demonstrate proficiency in a language including the cost of a standardized test to determine proficiency.

Languages available for the biliteracy seal include modern languages, Latin, American Sign Language, Native American languages, and native languages.

Teacher evaluation: Beginning with the 2017–2018 school year, a board of education may elect not to evaluate a teacher participating in the teacher residency program under 3319.223 for the year during which the teacher takes, for the first time, at least half of the performance-based assessment prescribed by ODE for resident educators.