On December 1, 2022, the Supreme Court of Ohio released a decision clarifying the burden of proof remains with a plaintiff in actions to enforce the Ohio Open Meetings Act (OMA). In State ex rel. Hicks v. Clermont Cty. Bd. of Commrs., Slip Opinion No. 2022-Ohio-4237, the Court rejected a burden shifting analysis created a decade ago by the Twelfth District Court of Appeals in State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569. As a result, it will be more difficult for plaintiffs to prevail in suits claiming violations of the OMA.
Under the rejected framework created by Hardin, a plaintiff must first show that a meeting of a majority of the members of a public body occurred and the public had been excluded. Next, the public body would have a burden to show that the meeting fell under one of the exceptions to the OMA. Finally, the burden would shift back to the plaintiff to come forward with evidence that the exception claimed by the public body is not applicable or valid.
In rejecting the Hardin court’s framework, the Hicks court recognized that “the plaintiff must prove a violation of the OMA. There is no requirement for the public body to conversely prove that no violation occurred.” The Supreme Court recognized a presumption of regularity, i.e., in the absence of evidence to the contrary, courts will presume public officers properly performed their duties and acted lawfully. Under the Supreme Court’s interpretation of the OMA, it is sufficient that a public body show a proper motion to enter executive session under the requirements of R.C. 121.22(G)(1). Further, the Supreme Court clarified that a board need not create a detailed record of its executive session discussions. Instead, “the only thing that the public body is required to record in its executive-session minutes is the statutorily permitted reason for the executive session.” As such, the OMA does not impose a duty to maintain a detailed record of executive session discussions.
Recognizing that its decision would make it more difficult to pursue alleged violations of the OMA, the Supreme Court explained that “the difficulty involved in proving a violation of the OMA is a policy choice for the General Assembly. If the General Assembly had been concerned about access to evidence in these types of cases, it could have written R.C. 121.22 to place the burden of production on the public body. It chose not to do so.”
Regarding the specificity of the motion to go into executive session, the Supreme Court also rejected the argument that a public body must discuss every topic it includes in its motion to enter into executive session. Refusing to impose a rule not contained in the statute, the Supreme Court concluded that “a public body must be able to introduce a motion that includes all the topics it might reasonably discuss during an executive session.” A limitation remains, however, that public body “may not discuss any additional topics that are not in included in its motion to enter executive session.”
The Hicks decision should prove helpful in defending claimed violations of the OMA because the burden now clearly rests on a plaintiff to prove that an improper executive session occurred. Please contact any of the Ennis Britton attorneys to discuss the requirements of the OMA.
Perhaps revealing enforcement priorities, the U.S. Department of Education’s Office of Special Education Programs (OSEP) and the U.S. Department of Health and Human Services’ Office of Head Start (OHS) recently issued a joint letter reminding state educational agencies (SEAs), local educational agencies (LEAs), and Head Start programs of their requirements to serve preschool-aged children under the Individuals with Disabilities Act (IDEA).
The letter asserts that “young children and their families have been disproportionately affected by service disruptions.” While acknowledging that the pandemic continues to present challenges to implementing appropriate programs and services to young children, “children with disabilities retain their rights under IDEA to receive appropriate special education and related services in accordance with their individualized education programs (IEP).” The letter stressed, “No IDEA requirements have been waived.”
The letter concludes that data shows: • initial evaluations have been delayed and not provided in a timely fashion; • special education and related services included in IEPs are not being provided timely or IEPs are not being fully implemented; and • placement decisions are not being made in accordance with IDEA’s least restrictive environment requirements.
The letter goes on to urge collaboration between SEAs, LEAs, and Head Start programs and provides links to resources to help meet the requirements of IDEA.
As a result of the correspondence, one can conclude that challenges resulting from pandemic disruptions will not serve as a “get out of jail free” card. Both the US Department of Education and the Department of Health and Human Services have put LRAs and Head Start programs on notice of their expectations.
Feel free to reach out to any of your partners at Ennis Britton to discuss special education compliance issues for preschool-aged children.
On August 23, the United States Court of Appeals for the Sixth Circuit weighed in on the constitutionality of mask mandates lacking a religious exemption. A Michigan school challenged the mandate in place by the state’s Department of Health and Human Services, stating the order was a violation of their free exercise of religion, equal protection, and substantive due process rights. A school official said the K-5 mask mandate violated the school’s sincerely held religious beliefs by preventing students from participating fully in their Catholic education.
In a 2-1 decision, the court affirmed the district court’s opinion that mask mandates that did not include an exemption for religious beliefs was not in violation of the Free Exercise of Religion Clause, noting it was subject to the rational basis test. The judge ruled the state order was not motivated by hostility to any specific faith and that it was neutral because it applied to all schools. Further, Defendants did not challenge the sincerity of the religious objection to the mandate, thereby simplifying the court’s analysis.
The rational basis is the least burdensome test and to prevail the governmental entity need only show some rational relation to a legitimate state interest. In contrast, the court could have applied “intermediate scrutiny” which would have required the government to show an important interest. The final option would have been to require “strict scrutiny” which requires the highest burden, a compelling state interest. In short, the court established that mask mandates need only clear the shortest and easiest to clear the hurdle.
What does this mean for your district?
Resurrection School v. Hertel serves as a roadmap for combatting religious exemption challenges to mask mandates. Such mandates should be examined to ensure neutrality and general applicability. Other nonreligious exemptions, such as medical exemptions should be narrow and discreet. Please contact one of the attorneys on the Ennis Britton team if you have questions about this case or mask mandates.
Many public employers are considering staffing adjustments in light of the coronavirus and its impact on available work. For those employees not covered under contracts that must be paid in the case of an “epidemic or other public calamity” pursuant to RC 3319.08(B) and 3319.081(G), layoffs are being contemplated. In order to have all the information on the financial impact of such a decision, the public employer should consider whether it is a “contributory employer” or a “reimbursing employer.”
Generally speaking, public employers are reimbursing employers. Essentially, reimbursing employers are self-insured and will be billed dollar-for-dollar by the Ohio Department of Jobs and Family Services for claims paid. Public entity employers who have elected to become a contributory employer have paid unemployment tax. Contributory employers will have their claims mutualized with other employers in the state and will not have to reimburse on a dollar-for-dollar basis. Determining if the public entity is a contributory employer or a reimbursing employer will be necessary to determine how much will be saved via staffing reductions.
The Coronavirus Aid, Relief, and
Economic Security Act (the CARES Act) provides that reimbursing employers may
be reimbursed for one-half of the amounts paid into a state unemployment trust
fund between March 13, 2020, and December 31, 2020.
If you have any questions regarding unemployment compensation issues, please reach out to any of the Ennis Britton lawyers.
The U.S. Department of Education and the Office for Civil Rights at the U.S. Department of Health and Human Services recently released updated guidance regarding the application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA) to a student’s education and health records.
FERPA generally prohibits educational agencies receiving federal funds from disclosing a student’s education records without the prior written consent of the parent or eligible student. On the other hand, HIPAA requires covered entities (health plans, health care clearinghouses, and health care providers) to protect an individual’s health records and other personal health information these entities maintain or transmit.
Are Public Schools Subject to HIPAA’s Privacy Requirements?
In a few very limited instances, an educational institution subject to FERPA may also be subject to the HIPAA privacy requirements. A school may be considered a “health care provider” if it provides health care to students in the normal course of business and the transactions are those for which the U.S. Department of Health and Human Services has adopted a standard form. Even though a school may employ nurses, physicians, or psychologists, schools generally do not bill health care plans for their services. Thus, most schools are not entities covered by HIPAA. Even if a school that is considered to be an entity covered by HIPAA (e.g., when a school hires a health care provider that bills Medicaid for services provided under the IDEA), it will not have to abide by the privacy requirements if the school maintains health information only in “educational records” under FERPA. This is due to HIPAA’s Privacy Rule explicitly excluding FERPA “educational records” from the scope of the act. 45 CFR § 160.103.
Frequently Asked Questions
This new guidance includes a list of new frequently asked questions along with answers to when a student’s health information can be shared without the consent of the parent or eligible student under FERPA and HIPAA. We will discuss some of these new clarifications below.
When can personal health information or personally identifiable information be shared about a student who presents a danger to themselves or to others?
FERPA allows educational institutions to disclose personally identifiable information to certain appropriate parties if knowledge of this information would be necessary to protect the health or safety of a student or others. This disclosure may take place with or without the consent of the student. 20 U.S.C. § 1232 g(b)(1)(I); 34 CFR §§ 99.31(a)(10) and 99.36. In order to use this exception, the educational institution must look to the totality of the circumstances and determine that there is an articulable and significant threat to the health or safety of the student or others. 34 CFR § 99.36(c). An articulable and significant threat means that if the educational institution can reasonably explain why it believes a student poses a significant threat, such as bodily harm to himself or others, the school may disclose educational records to any person who would be able to assist in protecting a person from that threat. If the educational institution is able to show that it had a rational basis for disclosing the information, the U.S. Department of Education will not substitute its judgment for that of the educational institution making its decision. 34 CFR § 99.36(c). The ability to share this information expires once the danger is no longer present.
The Joint Guidance provided the following example: A student states that he knows where his parents keeps his guns and that he is going to come back and make sure that someone pays for what they have done. What is the district supposed to do? According to the U.S. Department of Education, FERPA permits the district to warn the appropriate parties that the student has made this statement and may be a threat to harm themselves or others. The district may inform the student’s parents, the police, or other parties that would be in a position to help protect the health and safety of the student or others.
Under FERPA, can an educational institution disclose, without prior written consent, personally identifiable information from a student’s educational or health records to their law enforcement officials?
The short answer is yes, so long as certain conditions are met. If the person is an employee of the educational institution, meets the school’s definition of a “school official” based on the school’s annual FERPA notice, and has a legitimate educational interest in the information/records then the law enforcement official may be considered a school official to whom a student’s personally identifiable information may be disclosed without prior written consent. 20 U.S.C. § 1232g(b)(1)(A); 34 CFR §§ 99.7(a)(3)(iii) and 99.31(a)(1)(i)(A).
What about School Resource Officers and other law enforcement officials who are not employees of the educational institution? School resource officers are not employees of the educational institution but may be considered a “school official” if they:
Perform an institutional service or function for which the school would otherwise use employees (e.g., ensure school safety or security);
Are under “direct control” of the educational institution with respect to the maintenance of the educational records. (e.g., done through a memorandum of understanding (MOU) to establish restrictions and protections);
Are subject to FERPA’s use and re-disclosure requirements in 34 CFR § 99.33, which provides that the personally identifiable information may only be used for the purpose for which the disclosure was made (e.g., school safety and security) and limits re-disclosure of the student’s educational records;
The SRO meets the school’s definition of a “school official” provided in its annual notification of FERPA rights and has a “legitimate educational interest” in the records.
If the school resource officer or other law enforcement official is not a “school official” acting with a “legitimate educational interest” then the school may not disclose a student’s educational and health records without the prior written consent of the parent unless an exception applies. (i.e. health or safety emergency explained above.)