Federal Procurement Spring Survival Guide

As of this fiscal year, all school districts that purchase goods or services with federal grant funds must comply with new federal regulations that were adopted a few years back. This is an important issue for schools to consider as they enter into contracts this spring to obtain federally funded goods and services.

By way of background, in 2013 the U.S. Office of Management and Budget (“OMB”) published the Uniform Guidelines requiring states and non-federal agencies to follow and adopt procedures and policies for purchasing goods and services with federal grant funds. The Uniform Guidelines became effective in 2014. However, the OMB granted a series of grace periods that delayed implementation of the new rules. The most recent grace period expired in December 2017 and therefore the rules became effective at the expiration of each entity’s fiscal year that occurred after that date.

For most Ohio schools, the new rules took effect July 1, 2018. This means that auditors will begin to audit districts on those procedures this school year. Some districts may have been audited this past year if the district adopted new policies and procedures before the expiration of the last grace period and failed to indicate in writing that they planned to take advantage of the final grace period. It is also important to note that the standards set out in the Uniform Guidance will not apply to contracts that were executed prior to the effective date of the rules.

The Uniform Guidance requires non-federal entities to use one of five specific purchasing methods for all nonpayroll purchases. 2 C.F.R. §200.371-318. The five procurement methods included in the Uniform Guidance are as follows:

  1. Micro Purchase Method – for purchases with an aggregate dollar amount that does not exceed the Micro Purchase Threshold, which is currently set at $10,000 (note that districts may set a lower threshold in board policy). Under this method, a district must consider costs, but is not required to solicit competitive quotes. To the extent practicable, the district must distribute micro-purchases equitably among qualified suppliers.
  2. Small Purchase Method – for purchases that do not exceed the Simplified Acquisition Threshold, which is currently set at $250,000 (note that districts may set a lower threshold in board policy). Here, an agency must obtain price quotations from an “adequate number of qualified suppliers.” The entity’s policy should define the number of quotes they believe to be adequate.
  3. Sealed Bid Method – for purchases that exceed the small purchase threshold where bids are publicly solicited and a firm fixed price contract is awarded to the responsible bidder who confirms all the terms and conditions of the invitation and has the lowest price. School districts will likely not use this method very frequently.
  4. Competitive Proposals – for purchases that exceed the small purchase threshold with more than one source submitting an offer for a fixed price or cost-reimbursement type contract. This method should be used when the Sealed Bid Method is not appropriate. The district is to evaluate the bidders on cost and other factors it has established in order to select the most qualified candidate.
  5. Noncompetitive Proposals – for purchases through a non-competitive solicitation under one of the following conditions:
  • The item is available only from a single source;
  • The public exigency or emergency for the requirement will not permit a delay in purchase;
  • The Federal awarding agency or pass-through entity expressly authorizes noncompetitive proposals in response to a written request from the non-federal agency or;
  • After solicitation of a number of sources, competition is determined to be inadequate.

A school district’s compliance with the Uniform Guidance will be subject to audit each year. The state auditor’s office has stressed that it is critical for school districts to maintain documentation to demonstrate that it has complied with the regulations set forth in the Uniform Guidance. This documentation should illustrate why a particular method was selected and how the district went about purchasing in accordance with their policies and guidelines. School districts should also be aware that a decision to use noncompetitive proposals may trigger stricter scrutiny and review than purchases made with other methods.

It is also important to note that there have been many questions about how the new regulations impact service contracts with Educational Service Centers (“ESCs”) in particular. Many services obtained through ESC contracts are paid for at least in part with federal funds. Two separate statues, R.C. §§3313.843 and 3313.845, define what types of contractual relationships that districts may have with ESCs. State law also specifically requires most districts to have a contract and be affiliated with an ESC if they have a student population at or below sixteen thousand. Unfortunately, this statutory structure does not fit neatly into the new Uniform Guidance, and it is unclear at this time whether school districts may use noncompetitive proposals, specifically through sole source, to procure federally funded services through ESCs. The Ohio Department of Education plans to publish additional guidance about how it believes the new procurement regulations apply to ESC contracts. The guidance is expected in the near future. In the meantime, contact legal counsel if you have questions about which method of procurement you should use for these and any other types of federally funded contracts.

What this means for your district
Districts should carefully review board policies and guidelines that pertain to federal procurement with staff who may be responsible for obtaining goods and services with federal grant funds. They should carefully consider how purchasing will be documented in anticipation of an audit. Districts should also review the terms adopted in policies and procedures with their policy providers to make sure that the policies are up to date.

Legal References: 2 C.F.R. Part 200, R.C. 3313.843, R.C. 3313.845

Concussion Case Involving Former Athlete Allowed to Proceed in Court

Ennis Britton first reported about this case in the May 2018 issue of our newsletter, School Law Review, as it has implications for school districts and athletic organizations. Since then, this case has continued in court, and the Ohio Supreme Court has now weighed in as well.

Steve Schmitz was an NCAA athlete who, during the course of his football career in the 1970s, exhibited several symptoms related to repeated concussions. He was diagnosed with CTE in 2012 and alleged that this was the first time he knew he had suffered a bodily injury. He filed a lawsuit in 2014. Since his death in 2015, his widow has continued the lawsuit.

The Cuyahoga County Court of Common Pleas dismissed the case based on the statute of limitations as more than two years had passed since the bodily injury occurred.

A cause of action for a bodily injury generally accrues from the time the wrongful act that caused the injury was committed. Most often, the bodily injury and the wrongful act occur at the same time; in these cases, the statute of limitations clearly begins tolling at the time of injury. However, in some cases a person is not aware of a bodily injury at the time of the wrongful act. In these cases, it is not as clear when the two-year statute of limitations should begin running.

On October 31, 2018, the Ohio Supreme Court unanimously decided that the lower court had dismissed the case prematurely and that the case should continue. The Supreme Court developed a “discovery rule” for cases of latent bodily injury, in which the injury develops after the incident that caused it. The opinion stated, “[e]ssentially, the statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable diligence, should know that he has suffered a cognizable injury.”

A similar case previously decided by the Ohio Supreme Court held that the statute of limitations for a latent injury claim began tolling on the “date a competent medical authority” informed the man of his specific bodily injury. Liddell v. SCA Servs. of Ohio, 70 Ohio St. 3d 6 (Ohio 1994).

Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391.

Service Animals in Schools

In October, a flight from Charlotte to Cleveland was delayed when a woman carrying what she characterized as an emotional support animal refused to deplane from the aircraft. Although the airline permits air travel for emotional support animals, the passenger failed to tell employees that her support animal was a squirrel. The airline does not allow rodents of any kind – including squirrels – aboard their aircraft, so the passenger was asked to deplane prior to takeoff. When the woman refused to deplane, all other passengers were forced to do so until the woman and the squirrel could be removed.

Would an Ohio public school district be required to permit the squirrel to accompany an individual onto school property? The answer to this question is no, because the animal does not meet the definition of a service animal under state or federal law.

Although public school districts are not regulated by the same rules as airlines, they are generally required to permit service animals to accompany individuals with disabilities on school premises and at school-related functions. Emotional support animals may be treated differently, as discussed below. It is important for school district staff to know how state and federal law define the term service animal and also to understand when an animal may and may not accompany an individual.

What is a service animal under the law?

Under federal law, a service animal is defined as a dog that is trained to do work or perform tasks for the benefit of an individual with a disability. Although the definition restricts the meaning of “service animal” to only a dog, federal law also permits a miniature horse to accompany an individual with disabilities under limited circumstances.

To determine whether a miniature horse must be permitted to accompany an individual with a disability, a public entity may consider four factors:

  • The type, size, and weight of the horse and whether the facility can accommodate based on these factors
  • Whether the handler has sufficient control of the horse
  • Whether the horse is housebroken
  • Whether the presence of the horse compromises legitimate safety requirements that are necessary for safe operations

It is important to note that an emotional support animal is not defined as a service animal under federal law. Emotional support animals provide comfort by being with a person rather than being trained to perform a specific task for an individual with a disability. A public entity may therefore not be required to treat an emotional support animal in the same fashion.

Also understand that other species of animals, whether wild or domestic, trained or untrained, are not defined as service animals either.

State laws may also apply to service animals. Ohio further classifies dogs into four groups (R.C. 955.011):

  • Assistance dog – a guide dog, hearing dog, or service dog that has been trained by a nonprofit special agency
  • Guide dog – a dog that has been trained or is in training to assist a blind person
  • Hearing dog – a dog that has been trained or is in training to assist a deaf or hearing-impaired person
  • Service dog – a dog that has been trained or is in training to assist a mobility-impaired person

When may a school district exclude a service animal?

A school district may exclude a service animal in a few circumstances. For instance, if the presence of the animal would require the district to modify policies, practices, or procedures in a way that would “fundamentally alter” the district’s services, programs, or activities, it may be excluded. This is a very high threshold to meet. A district may also be able to exclude animals that present legitimate safety concerns, are not housebroken, or do not remain under effective control of the handler.

What about individuals who might be allergic to the service animal?

A school district is expected to carefully consider the risks to all parties involved, including those with a service animal and those who are allergic to one. A district should thoroughly explore ways to reasonably accommodate the needs of all individuals involved before it considers excluding a service animal because of an allergy.

Can a district restrict the animal’s access to certain areas?

Generally, a service animal must be permitted to accompany an individual in all areas where the public is permitted to go. This includes access to facilities and to all school-sponsored activities and events, even if they occur after hours, unless a legitimate reason for a restriction or exclusion applies (see above).

A school district’s obligation to permit service animals applies not only to students but also to parents and visitors. Generally, public entities must allow individuals with disabilities to be accompanied by service animals in all areas that are open to the public. You should contact your district’s legal counsel if you have questions about service animals in your school facilities and programs.

 

Legislation to Create Substitute Pupil Services Personnel License

The Ohio House of Representatives is expected to vote on a bill that would create a license for individuals to serve as substitute pupil services personnel. HB 491 passed in the House Education and Career Readiness Committee on March 21 by a vote of 16-0. The bill enacts a new section of the Revised Code (3319.2210) that would require the state board of education to issue a substitute license to individuals who meet certain criteria and wish to serve as substitutes in the following positions:

  • ​Speech language pathologists
  • Audiologists
  • Registerd nurses
  • Physical therapists
  • Physical therapist assistants
  • Occupational therapists
  • Occupational therapist assistants
  • Social workers

The current version of HB 491 would require the superintendent to request and recommend an individual for the new license. Any candidate who wishes to obtain the license must submit both a copy of a valid occupational license as well as all materials necessary to complete a criminal background check. The license may include a term of 1–5 years as determined by the state board. The state board is prohibited from requiring any additional qualifications beyond those listed in the statute. A school district may only hire a substitute license holder in a substitute capacity.

The Ohio House will meet again during the second week in April, when it is expected to vote on this bill.

House Bill 170 Advances Tech-Driven Education in Ohio

HB 170 provides the option for secondary schools to offer instruction in computer science. After the bill passed in the House, the Senate amended it, and the House then reviewed and agreed to the changes. Gov. Kasich signed the bill on December 22.

Model curriculum

The bill requires the State Board of Education to adopt academic content standards and a model curriculum for computer science for grades K–12, including standards for introductory and advanced computer science courses in grades 9–12. Any school district or school may use these standards and curriculum, or any part of them, but no school would be required to use them in whole or in part.

Units of instruction

A unit of computer science may be substituted for a unit of math or science but may not take the place of biology or life science courses. Advanced computer science may take the place of algebra II. However, the district must inform the student and his or her parents that secondary institutes may require completion of algebra II as a prerequisite to admission. Parents must sign a statement acknowledging that not taking algebra II may have an adverse effect on college admission. Career-tech students are still permitted to complete a career-based pathway mathematics course in lieu of algebra II or computer science.

Teacher licensure

Schools may employ only individuals who are licensed in computer science or those who have a license endorsement in computer technology and a passing score on a computer science content exam to teach computer science courses. Additionally, licensed educators who qualify for a supplemental teaching license for computer science may teach computer science courses; these educators may advance to a standard educator license, after teaching computer science for at least two years, by completing a pedagogy course in the applicable grade level.

To teach advanced placement computer science courses, the educator must complete a professional development program endorsed or provided by the organization that creates and administers national advanced placement exams.

Fund

School boards may establish a computer science and technology fund to support computer science programs and professional development. The fund may include district or school funding, private funding, and future state funding, as long as these funds may legally be used for this purpose and are not designated for something else. This fund may be used for professional development, online assessments including instruction and data that support these assessments, wireless connectivity, network services, computer equipment purchases, and leveraging or matching additional private donations.

Auxiliary services funding

Private, nonreligious charter schools are permitted but not required to receive auxiliary services funding directly rather than from the local school district. In this case, these schools may contract with the local districts for certain health, support, scoring, and security services for which the funding may be used. After the end of each biennium, if the funding was insufficient, these schools may apply to ODE for funds to make up the difference.