by Jeremy Neff | Mar 12, 2020 | COVID-19 (Coronavirus), General, Special Education, Student Education and Discipline
UPDATE (3/12/20 at 6:20 PM): At 6 PM on March 12 the US Department of Education released new guidance on special education and COVID-19 that is available here.
In the past 48 hours it seems as if the already rapidly developing story of COVID-19, or novel coronavirus, has accelerated even more. With major spectator events being postponed, universities and colleges moving to online instruction, escalating infection rates around the globe, and the declaration of a pandemic by the WHO it seems inevitable that at least some Ohio public school districts will experience extended closures. These closures will raise important questions both in terms of employment and education. Given the unique and unprecedented challenges involved, we encourage you to work with legal counsel in real time to ensure effective and compliant responses.
What flexibility can we expect in meeting federal
requirements for education?
We can look to official guidance issued during the 2009 H1N1 pandemic to get a sense of what we might expect with COVID-19. On December 1, 2009, the US Department of Education (ED) issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, on other Grantee and Program Participants in Responding to Pandemic Influenza H1N1 Virus” (“SEA” refers to State Education Agencies like ODE, and “LEA” refers to Local Education Agencies like individual school districts). The guidance document discussed in generalities the willingness of the US Department of Education to offer flexibility regarding the requirements of the Elementary and Secondary Education Act (now referred to as ESSA). It is reasonable to assume that flexibility will likewise be offered as COVID-19 has begun to force school closures. We will continue to update clients as specific guidance is issued.
Specifically regarding students on IEPs and 504 plans,
what services must we provide during a closure?
We are receiving many calls related to the delivery of
instruction during possible closures, and specifically regarding the delivery
of instruction to students with IEPs and 504 Plans. Here is what ED said on
this topic in 2009 regarding H1N1:
Must an LEA continue to provide FAPE to students with
disabilities during a school closure caused by an H1N1
outbreak?
The IDEA, Section 504, and the ADA do not specifically
address a situation in which elementary and secondary schools would be closed
for an extended period of time because of exceptional circumstances; however,
LEAs must be sure not to discriminate on the basis of disability when providing
educational services.
If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational
services, and does not provide any educational services to the general student
population, then an LEA would not be required to provide services to students
with disabilities during that same period of time. Once school resumes,
however, a subsequent individualized determination is required to decide
whether a student with a disability requires compensatory education to make up
for any skills that may have been lost because of the school closure or because
the student did not receive an educational benefit.
If an LEA continues to provide educational opportunities
to the general student population, then it must ensure that students with
disabilities also have equal access to the same opportunities and to the
provision of FAPE, where appropriate. SEAs and LEAs must ensure that, to the
greatest extent possible, each student with a disability receives the special
education and related services identified in the student’s individualized
education program (IEP) developed under IDEA, or a plan developed under Section
504.
There is no guarantee that ED would issue the same guidance
today for COVID-19, but given the parallels between the concerns in 2009 and
those today, this 2009 guidance is a reasonable starting point for planning a
compliant response to a potential school closure for COVID-19.
What are the special education implications of providing
online instruction during a closure?
It is notable that the approach that creates the most risk
for a school district, per the 2009 ED guidance, is to offer online instruction
during a closure. The reason this can become a problem is that students with
disabilities will need to be offered accessible instruction that meets their
unique needs. It is difficult to imagine how a district might provide “regular
prompting,” a common accommodation, to a child who is sitting alone at a
computer. And what of the child who does not have a computer or internet
access? Per the 2009 ED guidance it would be more legally compliant to not
offer any instruction at all than to offer online instruction without an
adequate plan for students with special needs.
This does not mean that online instruction should be ruled out. It just means that if online instruction is used there will need to be a plan for how this will serve students with disabilities. You should also consider the possibility of not immediately implementing online instruction. Given the mild winter and the fact that most schools significantly exceed minimum hours of instruction on their regular calendars, it is likely that a few days of closure (without online instruction) will not violate state minimum hours law. Even if a closure is longer lasting, pausing before implementing online instruction could provide important breathing room for student services to plan for serving students with disabilities.
Will we be required to provide compensatory education to
students on IEPs and 504 plans following a closure?
The 2009 ED guidance points to the fact that a discussion of
whether compensatory education may be required should follow any period of
closure regardless of what services are provided. Unless a child is already
assigned to home instruction at the time of the closure, any set of services
during a closure will in some ways not be in compliance with the child’s IEP.
While proactive amendments to account for anticipated closures could minimize
the risks, it would be ambitious for most districts to secure consent for
amendments for all IEPs. A more realistic approach could involve identifying
students who are most at risk of significant regression during a closure, and
working with parents to develop a plan to minimize that regression. Not only is
this educationally sound, it would be an important part of any legal defense
related to IDEA or Section 504 complaints. Once school resumes after a closure
you can revisit whether other compensatory services are appropriate.
Please continue to follow the Ennis Britton blog for updates
on COVID-19, and do not hesitate to call any of our attorneys with questions or
concerns.
by Pamela Leist | Mar 11, 2020 | COVID-19 (Coronavirus), General
UPDATED APRIL 1, 2020
On March 11, 2020, the World Health Organization officially declared that COVID-19, a novel coronavirus, has become a pandemic. We anticipate that this virus will pose many challenges to school districts and communities in the coming weeks and months. It is important for public school district boards of education to understand state laws regarding board meetings so that you have a plan in place to effectively maintain operations during this and future pandemics.
How frequently is a board of education required to meet?
Board of education must meet at least once every two months. Regular meetings are scheduled at the organizational meeting in January. A board of education may convene a special meeting by providing proper notice to the board members and the public. Board members must be notified of the special meeting at least two days prior to the event. Additionally, the board must announce special meetings at least 24 hours ahead of time to the public. With this said, the board of education may cancel meetings in its discretion. Notice of meeting cancellation should be provided as soon as possible.
May the Board of Education conduct a remote meeting online or by telephone?
Ohio’s Open Meetings Act, R.C. §121.22, requires a board of education to conduct meetings that are open to the public. Prior to the COVID-19 pandemic, a member of a public body was required to attend meetings in person even during a health emergency. The Ohio attorney general declared as much in an opinion published in 2009, and concluded that a township could not meet remotely during a pandemic or other public health emergency, even to provide needed response services because this would interfere with the public’s ability to attend. Click here to access 2009 OAG 034. Rather, the Attorney General recognized that a public entity was not permitted to conduct a public meeting remotely unless the General Assembly had authorized it to do so through legislative action.
However, as a sign of the truly unique and unprecedented times we are living in, on March 25th, 2020 the Ohio General Assembly passed an emergency measure through House Bill 197 which temporarily authorizes boards of education and other local government agencies to hold public meetings by teleconference or video conference while the health threat continues.
This law permits members of a school board to participate from a remote location while the emergency is ongoing. Members will be considered present regardless of whether they attend in person or remotely, and their votes will be counted for the purpose of determining quorum. The law declares that any resolution, rule, or formal action taken shall have the same effect as if it had occurred during a typical in-person meeting.
The law also permits a board to fulfill the public access requirement for open meetings by providing members of the public with remote access to the meeting. Examples of acceptable remote access technologies include live-streaming by means of the internet, local radio, television, cable, or public access channels, call in information for a teleconference, or by means of similar electronic technology. The public must be able to observe and hear all discussions and deliberations regardless of whether the board member participates.
If the meetings are streamed over some type of technology, boards must publish information about how the public can access the meetings at least twenty-four hours in advance, unless the board convenes an emergency meeting. Notice should be sent to all members of the media and public who have requested to be notified, and by other means that will reasonably provide notice to the public.
School boards must comply with all other Open Meetings requirements such as quorum and executive sessions. The provisions of HB 197 will remain in effect until December 1, 2020 or until the COVID-19 emergency ceases, whichever comes first.
Prior to HB 197’s passage, the Ohio Attorney General issued a letter on March 13, 2020 shortly following official orders issued by both the Ohio Governor Mike DeWine and the Ohio Department of Health Director Dr. Amy Acton which prohibited mass gatherings and also urged individuals to maintain adequate personal space. The Attorney General emphasized that public business must be allowed to continue in times such as these, but also clearly stated that this opportunity would apply in very narrow circumstances and only while the orders remained in effect. The AG cautions public bodies that they may want to refrain from making decisions that are unrelated to the current health emergency, including examples such as passing a new tax or enacting a new regulatory scheme.
Districts should pay careful attention to the provisions of HB 197 as well as comments included in the Attorney General’s letter, and should contact legal counsel for advice before conducting remote meetings. Click here to access the letter, and click here to review HB 197.
What happens if a majority of board members are unable or unwilling to attend meetings due to personal choice, a quarantine or government order?
A board of education must have a quorum in order to properly conduct school business. A majority of all members of the board constitutes a quorum, and a majority of the quorum is typically sufficient to approve a motion or resolution. Some actions require a special voting majority (a majority of the full board or more) under state law. These include adoption of a resolution to purchase or sell real or personal property, employ a staff member, appoint a public official, pay a debt or claim, and adopt a textbook.
Without having the required voting majorities, the actions may not legally be accomplished. As a result, a board of education may need to consider postponing certain actions and should attempt to reschedule meetings if an insufficient number of members are able to attend. In accordance with HB 197, boards may be able to host remote meetings under certain narrow circumstances during a health emergency. Boards of education may be able to delegate certain decisions to a superintendent, and also may be able to take certain actions retroactively in an emergency.
Will the General Assembly make further changes in the law to respond to the COVID-19 pandemic?
It is likely that local, state and federal governments will work diligently with school districts and communities to address the many challenges that COVID-19 has caused and is likely to cause in the future. Therefore, it is possible that legislative measures will be taken that will allow public bodies to operate differently than before in response to the public health needs of the community. It is not yet certain how serious the pandemic will become, how long it will last, and what short and long-term impacts it will have on school operations. In the meantime, boards should regularly consult trusted sources and with legal counsel to explore options and weigh risks during this novel pandemic situation.
Ennis Britton will update this information if it changes over time.
by Giselle Spencer | Mar 9, 2020 | General, School Management
Last week, U. S.
Secretary of Education Betsy DeVos announced plans for a new compliance review
and data collection initiative to address the rise in sexual assaults in K-12
education, this time targeting the actions of adult employees toward school
students. Among other things, the new
initiative will implement provisions to prohibit public schools from
reassigning employees accused of sexual assaults against students.
Asserting that “No
parent should have to think twice about their child’s safety while on school
grounds,” DeVos directed the Office for Civil Rights to lead the initiative to
examine sexual assault through several avenues, including the following:
- OCR will focus on raising public awareness of the issue of sexual assault in K-12 schools, including making information on the issue available to educators, school leaders, and families.
- OCR will conduct nationwide compliance reviews to examine how sexual assault allegations are handled under Title IX, with special emphasis on sexual incidents involving teachers and school staff. It will then become OCR’s job to work with districts to correct any compliance concerns.
- OCR will conduct Data Quality Reviews (DQRs) of the sexual offenses data including sexual assaults, as submitted by school districts through the Civil Rights Data Collection (CRDC). In doing so, OCR will partner with the National Center for Education Statistics (NCES) and support districts in accurately recording and reporting incidents of sexual assault/sexual offenses through the CRDC.
- For the 2019-2020 data collection, OCR has proposed collecting more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel. If adopted, the inclusion of this data would make the CRDC collection the first universal collection to gather such data systemically for individual schools.
This is the second
nationwide initiative announced by the OCR within the last 13 months. The present announcement comes in the wake of
OCR’s recent resolution of two sexual harassment complaints involving Chicago
Public Schools. However, Secretary DeVos insists the issue is widespread,
stating “We hear too often about innocent children being sexually assaulted by
an adult at school.” Her declaration is
supported by 2015-2016 CRDC reports recording more than 9,700 incidents of
sexual assault, rape or attempted rape in public elementary and secondary
schools. The Agency additionally reports
the problem is “fifteen times greater than a decade ago.” The reporting as
referenced does not break down the number of adults directly involved in such
allegations but relate to a companion announcement by the Office of Elementary
and Secondary Education that it will publish an extensive study on state and
local measures to prevent the “pass the trash” phenomenon in dealing with
adults accused of sexual offenses against students.
by Pamela Leist | Feb 3, 2020 | General, Legislation, School Finance, School Management
Efforts to curb the impact of EdChoice accelerated towards the end of January as legislators in the Senate and House searched for ways to reduce the negative financial impact that the program is anticipated to have on Ohio’s public schools starting next year. Legislators and the governor approved language in last year’s budget bill which was designed to dramatically increase the number of students eligible for the scholarships by more than doubling the number of eligible buildings. Prior to the program expansion, EdChoice was available in 31 school districts and 255 schools. After the expansion, EdChoice eligibility would have extended to at least 426 school districts and 1,227 schools.
Lobbying efforts and contacts from districts to their legislators and to House and Senate committee members to reduce the impact of the changes resulted in the last-minute action to delay implementation of the changes. The 2020-2021 application window for EdChoice would have opened on February 1st, of this year; now, the program application is delayed to April 1st. The House and Senate are expected to review the EdChoice program expansion in the next two months and hopefully will develop amendments to the budget expansion which will better support Ohio’s public school system.
The House initially proposed changes to EdChoice through HB 9. With a deadline of February 1st (the start of the applications of EdChoice scholarships) looming, the Senate passed alternative language late in the evening on January 29th. The Senate’s plan would have reduced the number of school buildings eligible under the traditional EdChoice program, but would also have increased the number of families eligible for the EdChoice expansion program by changing eligibility from 200% to 300% of the federal poverty guidelines for the income-based vouchers.
The bill was sent back to the House, which rejected the changes, and a conference committee convened. The House elected instead to pass House Bill 120, including language delaying the EdChoice application window until April 1st. HB 120 also contained separate provisions that authorize the auditor’s office to conduct performance audits of all state institutions of higher education and also modified requirements for College Credit Plus informational sessions. The bill included an appropriation of $10 million to help fund the EdChoice program. The Senate passed HB 120 on January 31st and the governor signed the bill the same day. The bill is considered an emergency measure and is effective immediately. This move buys the legislature more time to develop a plan that both houses are willing to pass.
February 3rd, 2020 Update: A group of families and private schools filed a lawsuit in the Ohio Supreme Court challenging House Bill 120 changes to EdChoice. The lawsuit alleges that the legislature failed to properly execute an emergency measure and therefore HB 120 should not go into effect for 90 days. The parties also claim that the HB 120 application delay will cause irreparable harm to new EdChoice eligible students who planned to apply for the scholarship. If successful, the state may be forced to accept applications starting February 1st.
We will keep you posted on developments. The education associations have sent out multiple calls of action on the bills and you are encouraged to continue to stay apprised of developments and let your legislators know how the expansion would affect your district.
by John E. Britton | Feb 3, 2020 | General, Labor and Employment, Unemployment, Workers’ Compensation
Generally,
employees in Ohio are eligible to receive unemployment benefits if they are
laid off from their place of employment. However, under Ohio law, if you are an
“independent contractor,” you are precluded from receiving those benefits. The
Eleventh District Court of Appeals recently held that a truck driver was an
independent contractor as opposed to an employee and therefore, was not
entitled to unemployment compensation.
In Marcus
Roach Express, L.L.C. v. Dir., Ohio Dept. of Job & Family Serv.,
2019-Ohio-5414, a truck driver claimed that he was an employee and entitled to
receive unemployment benefits. The Ohio Department of Job & Family Services
(“ODJFS”) initially issued a determination allowing him to receive benefits,
which the employer appealed to the court.
At issue in
the appeal was whether the truck driver was really an independent contractor,
rather than an “employee” separated from his job due to a lack of work. In
making the determination of employee versus independent contractor, the
Unemployment Review Commission will generally look to the list of twenty
factors outlined in Ohio Adm. Code 4141-3-05(B). Though these factors may be
used by the Commission, they are not necessarily determinative of whether the
individual was or was not “subject to direction and control” over their
services — the primary metric in the analysis of deciding independent
contractor status.
In this
case, the truck driver’s agreement actually stated that he was an independent
contractor and not an employee of the company. Though this fact supports a
finding that he was an independent contractor, the court looked to the totality
of the circumstances in order to determine whether the employer actually had
the right to control the driver’s work.
ODJFS
argued that “control” existed because the employer paid the driver weekly,
approved his time-off requests, owned the delivery truck and paid for its
repairs, required him to turn in logbooks, and continued a working relationship
with the individual for eight years.
The court,
however, noted that the driver was paid based on how many loads he accepted as
opposed to the number of hours he worked. Additionally, the claimant was able
to decide which routes he wanted and was able to set his own schedule, all of
which led the court to conclude that the company did not exercise nor retain a
right to control the individual’s work. Therefore, the driver was considered to
be an independent contractor and was not eligible to receive unemployment
benefits.
This case
should remind us that in the service-oriented nature of public education, there
are limited opportunities to truly employ “independent contractors” for daily
operations of districts. In teaching, feeding, counseling, transporting,
and operating buildings, districts maintain control of personnel in the
delivery of those services — and for good reason. The factors for establishing
a true independent contractor are important to know, particularly when
attempting to defeat a claim for unemployment. While this case is
instructive, should you want to question a request for unemployment
compensation on this basis, it is advisable to contact an Ennis Britton
attorney to review your realistic options.
by Robert McBride | Jan 30, 2020 | General, School Management
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.)
