OHS Gives Notice of Important Rules Changes Concerning Universal Making and Vaccines

OHS Gives Notice of Important Rules Changes Concerning Universal Making and Vaccines

The Director of the Office of Head Start (OHS), U.S. Department of Health and Human Services (HHS), recently shared a letter with the Head Start community an update that will revise the Head Start Program Performance Standards (HSPPS) to include additional health and safety requirements.

On November 10, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its COVID-19 Guidance for Operating Early Childhood Education (ECE) and Child Care Programs. The CDC stressed that vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic, and promoting vaccination among all eligible individuals can help ECE programs protect staff and children in their care, as well as their families. It acknowledges that most ECE programs serve children in an age group that is not yet eligible for vaccination and emphasizes using multiple prevention strategies together to protect both children and adults in ECE care.

Consistent with this messaging, HSPPS now recommends universal indoor masking in ECE programs for everyone ages two and older. The standards will also require vaccination against COVID-19 for all staff, contractors, and volunteers working with children be fully vaccinated (two doses for Pfizer or Moderna and one dose of Janssen) by January 31, 2022. Anyone granted a vaccine exemption will be required to undergo weekly testing.

As part of President Biden’s Path Out of the Pandemic, an interim final rule with comment (IFC) was published on November 30, 2021. With the release of the new HSPPS, the Office of Head Start hosted a webinar outlining these new requirements and published Universal Masking and COVID-19 Vaccine Requirements FAQs. Both the webinar and the FAQ were released on November 29, and the webinar is available on demand through the OHS website.

Since these new requirements will be a federal mandate, districts with head start programs may wish to begin informing staff and/or parents of the projected procedures.

New Federal Guidance from OSEP: a COVID-19 Q&A

The U.S. Department of Education’s Office of Special Education Programs (OSEP) published a new COVID-19 Q&A on September 28, 2020 (OSEP QA 20-01). While OSEP explicitly cautions that the Q&A “is intended only to provide clarity to the public regarding existing requirements,” it nonetheless provides insights on how long-standing rules and laws will be applied to the novel COVID-19 virus.

In support of school districts that are guiding their decision-making based on the health and safety of students and staff, OSEP repeatedly describes health and safety as “most important” and “paramount.” If a hearing officer or court is making a decision based on the equities (i.e. fairness) the emphasis of OSEP on safety will weigh in favor of schools making reasonable adjustments to how IDEA is implemented. However, OSEP also repeatedly states that school districts “remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.” This requires an individualized response to COVID-19 that focuses on “each child’s unique needs” and ensures “challenging objectives.”

To strike the balance of protecting health and safety while also providing FAPE, OSEP points school districts to the normal IDEA processes. The Q&A notes that no changes to the law or regulations have been made at the federal level. Interestingly, when discussing the timeline for initial evaluations OSEP advises that states “have the flexibility to establish additional exceptions” to the 60 day initial evaluation timeline. As of this writing, the Ohio Department of Education has not taken actions to allow for COVID-19 specific exceptions from the timeline.

Otherwise, OSEP’s Q&A largely points to approaches that have been addressed in prior “Special Education Spotlight” articles, Ennis Britton blog posts, and in our Coffee Chat webinar series. These approaches include conducting records review evaluations when in-person evaluations are not possible, using virtual team meeting platforms, and delivering services flexibly (e.g. teletherapy, consultation with parents.). OSEP warns against conducting remote evaluations if doing so would violate the instructions of the test publishers.

The discussion of extended school year (ESY) services is perhaps the topic most likely to generate interest in the short-term. After clearly distinguishing ESY from compensatory education or recovery services, OSEP acknowledges the authority of the states to establish standards for ESY. Note that in Ohio the standard is based on excessive regression and recoupment. OSEP proceeds to observe that, understandably, ESY services may not have been provided over the past summer due to COVID-19 restrictions. In such cases, OSEP encourages school districts to “consider” providing ESY during times such as the regular school year or scheduled breaks (e.g. winter break).

The Ennis Britton Special Education Team will continue to monitor and share with clients the latest developments as we navigate this unusual school year. Please contact a member of our team with questions or concerns.

FFCRA leave guidance changes now effective

A lawsuit challenging the Department of Labor (DoL) FFCRA leave guidance was filed in April 2020 by the New York Attorney General. (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020) The decision of the federal district court invalidated four sections of the DoL regulations. The invalidated regulations included:

  • The persons covered as “health care providers” who could be excluded from the leave provisions of the Act,
  • Regulations stating the employer must permit intermittent leave under the EPSLA or EFMLEA,
  • Prior notice of leave provisions, and
  • Availability of leave if the employer does not have work for the employee to do.

DoL recently issued a new temporary rule with explanations of some of the provisions (intermittent leave) and clarification/amendment of others (notice of leave), effective September 16- December 31, 2020. Unless extended through additional legislation, the leave provisions in FFCRA (EPSLA and EFMLEA) expire at the end of December.

Find the notice in the Federal Register here: https://preview.tinyurl.com/yysmuzlg.

DoL clarified and expanded upon its interpretation on intermittent leave. An ongoing question for public schools has been how to administer the use of EFMLEA leave for child care when the employee’s child(ren) are on a hybrid schedule, attending in person and remotely from week to week or day to day. Updated regulations clarify that EFMLEA child care leave for parents whose students are on hybrid programs is not considered intermittent leave.

The rationale: because school buildings are closed to students on days when students attend remotely, remote days are considered a qualifying reason for leave. In contrast, when the child goes to school in person, the school is open. When the school switches back to remote learning, it is a new qualifying reason for leave. This guidance is different from previously-published guidance and is a new interpretation. Intermittent leave was addressed at questions #20-22 of the Dol “FFCRA Questions and Answers”. It is assumed this Q & A will be revised after the effective date.

DoL’s new explanation of the rationale as published in the Federal Register, 85 FR 57677 :
“The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.

In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.

This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.”

Teleworking employees: DoL clarified that an employee may take intermittent leave while teleworking for any of the FFCRA qualifying reasons if the employer permits it.

Notice and documentation of leave: The DoL also amended one regulation that required notice to the employer of the need for leave prior to taking the leave.

  • EPSLA leave: notice of the need for leave cannot be required prior to the leave. The revision states that notice of leave after the first day should be given “as is practicable.”
  • EFMLEA leave: if the need for the leave is foreseeable, notice should be given in advance. If not foreseeable, the employee must give notice “as is practicable.” Employees may be required to provide documentation including the employee’s name, dates for which leave is requested, qualifying reasons for the leave, and an oral or written statement the employee is unable to work.

What this means for your district:
Administering EPSLA and EFMLEA child care leave has been challenging. DoL’s interpretations and positions continue to evolve. These regulations clarify some of the questions we have been getting, although additional questions remain. Please consult with an EB attorney if you have specific questions about how the newly-effective regulations apply in specific situations.

Ensuring Graduation Ceremonies Are Accessible to All Viewers

In light of ongoing bans on mass gatherings, many school districts are moving to a graduation ceremony plan that involves a video or other online elements (e.g. video, PowerPoint, etc.). While virtual commencements may be almost unheard of prior to this spring, there are long-standing legal requirements that apply to this format just as they would to traditional, in-person ceremonies.

Traditional graduation ceremonies include many features aimed at making them accessible to students, family and friends, and school employees who have disabilities. Because school facilities are already subject to Americans with Disabilities Act design requirements everything from the parking lots, building entrances, restrooms, and seating areas are already accessible. Specific to the graduation ceremony itself, a school might have wheelchair ramps to access the stage, a sign language interpreter, and other accommodations.

The same anti-discrimination laws that inform the accommodations described above also apply to online services offered by school districts. In recent years, disability rights activists have filed hundreds of complaints regarding school district website accessibility. In many cases, the activists had no connection at all to the district against which the complaint was filed. They were simply scouring the internet for websites with obvious accessibility concerns. It is entirely possible that a similar approach may be used in relation to this year’s virtual graduation ceremonies. In any event, it makes good sense for districts to address website accessibility, irrespective of the pandemic. 

As such, and in our experience assisting school districts that were subject to website accessibility complaints, it seems that there are certain “red flags” that may have caused some websites to be targeted for complaints while others were not. Applying this lesson to virtual graduation ceremonies, there are some basic steps that can still be taken to reduce the risk of receiving an investigation letter from the Office for Civil Rights:

  • Investigate practical captioning options: Many online platforms have captioning already built-in, so it may just be a matter of enabling this feature and editing the automatic captioning. Captioning can stand in the place of a sign language interpreter if that is normally offered at your district’s ceremonies. Of course, many graduation ceremonies in the past did not have an interpreter and this has not caused widespread complaints. The idea now is to investigate what options are available in the online platform that you use for the ceremony and to use available tools to reduce your risks.
  • Pay attention to color contrast: School colors are a source of pride and frequently used in important rituals like graduation. However, if the school colors are low contrast (e.g. red and orange, green and blue) it may cause problems for people with vision-related disabilities. Consider pairing neutral alternative colors like black or white with a school color to avoid low contrast pairings.
  • Ensure announcements of the ceremony details are formatted for screen reader use: People with vision-related disabilities sometimes use screen readers to access electronic written information. Some file formats are less screen reader-friendly. PDF files and other picture type files can be problematic. Simpler can be better when it comes to conveying information in writing. A basic email or attached Word document is less likely to cause challenges.
  • Make access to the virtual ceremony accessible: A common challenge with school websites is that they are not easily navigated by individuals with physical challenges that prevent them from using a mouse. Consider emailing students and their families a link that goes directly to the virtual ceremony. The more steps that must be taken to get to the virtual ceremony, the more risk there is of an accessibility issue (e.g. a drop-down menu that cannot be easily accessed using keyboard tabbing, a link button that is not tagged, etc.).

The efforts taken by school districts to offer something special for seniors graduating under the current conditions are admirable. Paying close attention to accessibility for people with disabilities will help ensure that these celebrations do not lead to legal headaches down the road. 

COVID-19 Update: Relief for Student Loan Borrowers

On March 25, 2020, U.S. Secretary of Education Betsy DeVos announced efforts to increase flexibility regarding payments for student loan borrows. The efforts are to ensure that borrowers will not endure additional stress in making ends meet during the unprecedented and burdensome times we are in. The flexibility will be for no less than 60 days from March 13, 2020, the date that President Donald Trump declared a national emergency relating to COVID-19.

DeVos’ efforts include halting all of the requests made to the U.S. Treasury that comprise withholding money from defaulted borrowers, known as Treasury offsets. These are withholdings from remittances such as federal income tax refunds, Social Security payments, or other federal payments that are withheld at the direction of the Department or Education or another debt collection agency. Additionally, Devos directed the Department of Education to refund nearly $1.8 billion in offsets to over 830,000 borrowers.

DeVos’ efforts include any wage garnishments. The Department of Education is relying on employers to make the change to borrowers’ paychecks and halt wage garnishments and is directing employees to contact their employers’ human resources department for assistance.

Districts should be proactive in ensuring that employee wages are not continuing to be garnished during this time. Please reach out to any of the Ennis Britton attorneys with any questions. For more information, visit StudentAid.gov/coronavirus.