by Pamela Leist | Mar 17, 2015 | General, Labor and Employment, Special Education
USDHHS Center for Medicare & Medicaid Services recently withdrew its prior guidance on the “free care” policy as expressed in the School-Based Administrative Claiming Guide. Under CMS’s new guidance, Medicaid reimbursement is available for covered services under the approved state plan regardless of whether there is any charge for the services to the beneficiary or the community at large. Also under CMS’s new guidance, schools are not considered to be legally liable third parties to the extent schools act to ensure that students receive needed medical services to access a free appropriate public education consistent with federal law. The guidance also states that even if a state determines that schools are legally liable third parties, the Medicare statute contains an exception which requires that Medicaid serve as the primary payer to schools and providers of services in an IEP under IDEA; noting that nothing in IDEA permits states to reduce medical or other assistance available.
by Pamela Leist | Oct 30, 2014 | Board Policy & Representation, General, School Management
As districts transition to the new minimum school year reporting system, the Ohio Department of Education (“ODE”) recently released guidance about how it will allocate funding for students that attend school for less than a full day. In July of 2013, House Bill 59 became effective and mandated that the state funding formula for schools be based on annualized full- time enrollment (“FTE”). In order for a district to receive full per pupil funding, each student is expected to receive instruction for the entire day that the student’s grade level is scheduled to attend.
However, school districts typically have a number of students that do not attend for a full day, including students who participate in alternative school programs or who receive home instruction. Currently, districts are required to report in EMIS the percent of time that these students attend school as compared to the full day. In its guidance, ODE states that schools may experience a decrease in funding for part- time students as follows.
Alternative School Programs
Many students who are enrolled in alternative school programs are given the option to complete online modules independently. Often these students do not attend school for the entire day. According to ODE’s guidance, beginning this school year districts will be expected to provide an entire day of instruction for alternative school students unless they apply for and receive a waiver from ODE. ODE cites ORC §3313.533(B)(1), which states that an alternative school student must attend school or participate in another program named in the district’s plan for a period equal to the minimum school day mandated by state law. ODE states that a district may obtain a waiver if it can demonstrate that “the minimum hourly requirements are not workable for a particular student population.”
Districts that wish to apply for a waiver this school year are instructed to submit an email request to ODE at daystohours@education.ohio.gov.
Home Instruction
ORC §3323.12 requires a board of education to provide home instruction for children with disabilities who are unable to attend school. The statute further clarifies that for the purpose of determining formula ADM, five hours of home instruction is equivalent to five school days. Relying in part on this statute, school districts sometimes place students temporarily on home instruction, and provide five hours of instruction each week to ensure full funding. However, ODE notes that unless an IEP expressly requires home instruction, students who receive home instruction for less than a full day, including special education students, must be reported in EMIS as attending part-time. These students may trigger a percentage reduction in funding as a result.
Senior Late Arrival and Early Release
For years, school districts have rewarded seniors who have completed most of their graduation requirements early with the option to arrive late or leave early from school each day. Beginning this summer, ODE indicated to districts that these students must be reported as attending school part-time. ODE recognized in the new guidance that districts may lose funding for the percentage of time the seniors are out of school because of late arrival or early release.
However, ODE also indicates that districts may apply for a waiver from the state superintendent that would allow them to count certain seniors who miss one period of class as fully enrolled, but only if those students take sufficiently rigorous courses. The guidance includes several examples of what would be considered “rigorous” for the waiver, such as when a student 1) takes two or more AP classes; 2) takes two courses through a dual enrollment program, or 3) completes a certain number of hours in an internship or apprenticeship program. A district that wishes to request this waiver/exemption should send the request along with a draft policy to daystohours@education.ohio.gov.
Work Release Programs
For work release, a district may count a student’s work time as instruction time if he/she participates in an official work study program or an approved educational option. However, if a student has been released for employment due to financial hardship, a district has two options:
1) The district may report the student as part-time and include only the hours the student actually attends class (this is required if the absence is for more than ten days); or
2) Under certain circumstances, the district can count the absence as an excused absence if in accordance with board policy and approved by the district’s superintendent as an emergency or some other circumstance considered “good and sufficient cause” for an absence from school. Under this option, the absence will not impact the school’s funding but will affect the attendance rate.
Zero Periods
The last exemption for FTE that was included in the guidance involves zero periods. A zero period occurs when a district offers an additional period of instruction that is optional for students. With regard to the zero period exception, ODE will permit a district to report a student as attending full-time if he/she attends a district-created optional instruction period/zero period but is released from a period later in the day.
If you would like to view ODE’s guidance on Annualized Full- Time Enrollment, click here.
LEGAL REFS: ORC 3313.533, 3317.03, 3321.04, 3323.12
by Pamela Leist | Jul 31, 2014 | Labor and Employment, School Management
As July comes to a close, schools across Ohio have begun to gear up for another school year. Yet just when you think you have put the chaos of staffing buildings and assigning students behind you, inevitably a teacher who would be very hard to replace at this juncture approaches the district and provides notice that he or she plans to resign to accept a position elsewhere. The question becomes whether the district must release the teacher from his contract. Before you agree to such a proposal, keep the following in mind.
Ohio law places strict limits on when a teacher may terminate a contract of employment absent consent from the board of education. Under ORC §3319.15, a teacher must provide a district with written notice that he or she wishes to terminate an employment contract each summer by July 10th. The law prohibits teachers from terminating a contract beyond that date, or at any point during the school year. The law also states a teacher must provide at least five days’ notice to the board before voluntarily terminating any agreement.
Interestingly enough, a board of education cannot seek an injunction in court to force a teacher to return to work if he or she attempts to resign beyond the narrow statutory window, or simply refuses to show up for work after the July 10th deadline. Such an injunction would violate the state and federal Constitutions’ prohibitions against involuntary servitude (U.S. Constitution, Amendment XIII, and Ohio Const. Art. I).
However, a district is not without some form of recourse. A school district can challenge violations of ORC §3319.15 through the Department of Education. The State Board of Education adopted the Licensure Code of Professional Conduct for Ohio Educators in 2008. Under the Code of Conduct, the State Board of Education may terminate or suspend a teacher’s license for abandonment of a contractual agreement without consent from the employing Board of Education. A teacher’s failure to comply with the law could thereafter have a significant impact on the individual’s future teaching career.
Questions? Contact your district’s legal counsel for more information.
by Pamela Leist | Jul 3, 2014 | Labor and Employment
The U.S. Supreme Court issued yet another precedent-setting decision this week for employers. In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. _____ (June 30, 2104), the Supreme Court held in a 5-4 decision that regulations which require employers to provide health insurance coverage for certain types of contraceptive drugs violate the religious rights of company owners who oppose the drugs for religious reasons.
The case was brought by three closely held for-profit corporations, Hobby Lobby, Mardel, and Conestoga Wood Specialties, to challenge an Affordable Care Act (“ACA”) regulation that required non-exempt employers to provide health insurance plans that covered twenty forms of oral contraception. Four of the twenty drugs prevented development of a fetus post-conception. The owners of the companies, all of whom espouse a Christian ideology, believed that termination of pregnancy post-conception violated their religious beliefs.
The companies initially filed requests for injunctions against the U.S. Department of Health and Human Services (“HHS”) to prevent enforcement of the ACA regulations, claiming the regulations violated the Religious Freedom Restoration Act of 1993 (“RFRA”). RFRA prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless the action constitutes the least restrictive means of serving a compelling government interest.
The Supreme Court first acknowledged that the owners of the companies have sincerely held religious objections to abortion, and the four contraceptive methods at issue are considered abortifacients. The Court next considered whether the regulations imposed a substantial burden on religious exercise. The Court held that they did because corporations were required to either comply or face penalties of up to $475 million per year. Finally, the Court concluded that while the regulations served a compelling government interest, they were not the least restrictive means by which the government could serve that interest. HHS had already created an alternative system that enabled religious nonprofits to exclude the contraceptives from employee health insurance cost-sharing benefits. Women who are covered by the system can still access the drugs, but their employers do not share the cost. The Court reasoned that for-profit corporations should also be able to participate in the alternative system.
The majority rejected the argument that corporations were not defined as “persons” under law, but instead expanded RFRA and potentially other federal protections to corporations now and in the future. They also disagreed with the claim that the plaintiffs could reduce the burden by electing to drop insurance coverage and thus reduce the penalties, citing the fact that employers would be a significant competitive disadvantage if they stopped offering health insurance to employees.
Justice Ginsberg, writing for the dissent, criticized the majority opinion and argued that the decision forced women who do not necessarily share the religious views of their employers to absorb the cost of contraception. Ginsberg cited a national study that concluded out of pocket expenses for women were as much as 68% higher than for men. Ginsberg also summarily disagreed with the majority’s conclusion that a for-profit corporation was a “person” covered by RFRA.
Ultimately, the Supreme Court decision in Burwell will force courts to reexamine the rights of corporations across the nation, and could have a potentially far-reaching impact on all employers in the near future.
by Pamela Leist | Jun 10, 2014 | Board Policy & Representation, General, Labor and Employment, School Management
Ohio legislators have once again modified the Ohio teacher evaluation system this month through passage of House Bill 362. The bill, which still awaits the Governor’s signature, reduces the frequency of evaluations for certain teachers and also creates an optional alternative evaluation framework that districts may elect to use as early as the 2014-2015 school year. Changes from the bill include the following.
First, HB 362 modified ORC 3319.111 by granting a board of education the discretionary authority to evaluate teachers who receive a rating of “Accomplished” on their most recent evaluations every three years. Likewise, Boards may also choose to evaluate “Skilled” teachers every two years. The law further specifies that in order to qualify for either of the above, a teacher must receive a student growth measure score of average or higher on the most recent evaluation (note that under the state-approved rubric, a teacher cannot receive a summative rating score of “Skilled” or “Accomplished” unless he or she received a SGM score that was average or higher). If a board elects either option, a credentialed evaluator must conduct at least one observation and hold at least one conference in each year that a teacher is not formally evaluated. The new law is silent as to whether a district must also gather student growth measure data in off years.
Additionally, the bill permits a board of education to elect not to evaluate teachers who have been on leave for at least fifty percent (50%) of the school year, and/or who have submitted a notice of retirement which has been accepted by the board no later than December 1st.
Finally, HB 362 establishes an alternative teacher evaluation framework under a new statute, ORC 3319.114. The alternative framework reduces the value of the teacher performance and student growth measure scores, and incorporates an additional measure derived from one of the following: student surveys, teacher self-evaluations, peer review evaluations, or student portfolios. The statute specifies that should a board elect to use the alternative framework for 2014-2015, a teacher’s final summative rating must be based on the following:
- 42.5% teacher performance rating;
- 42.5% student growth measure; and
- 15% from one of the additional measures listed above
For 2015-2016 and beyond, a school board has some discretion to determine the value of the three components. However, the teacher performance and student growth measures must each count for at least 42.5% of the score. And, the new law requires that an equal percentage of the final summative rating be allocated to teacher performance and student growth. The remaining percentage of the summative rating will be derived from the chosen alternative tool.
Under the new statute, the Ohio Department of Education must compile a list of approved instruments for districts to use with the alternative framework. School districts are required to select evaluation instruments from amongst that list.
As with previous OTES and OPES modifications, a number of questions remain about whether the changes will actually improve the process and ease the burden of evaluations for school administrators and teachers, or whether they will merely create additional traps that snare the unwary. One of the primary concerns is the fact that the bill will not become effective until mid-September, nearly one month after most districts begin the 2014-2015 school year. And, in order to roll out the new system by 2014-2015, the Department has only a few months to select alternative evaluation tools, and even less time to determine the validity of the data each tool captures. Finally, while the prospect of reducing the frequency of evaluations is enticing, this practice may weaken the validity of future evaluation results for teachers, which will ultimately impact a board of education’s ability to make solid employment decisions. For these reasons, districts should be cautious to embrace the new changes until additional analysis is conducted. In the least, districts should contact legal council before adopting evaluation policy changes for this upcoming school year.
To review HB 362 in its entirety, click here.
