Amended House Bill 404: Open Meetings, Local CARES Act Redistribution, License Deadlines and More

November 23, 2020

When House Bill (“HB”) 197 went into effect last spring, during the initial phase of the coronavirus (“COVID-19”) pandemic, it provided relief to Ohio school districts in many important areas of school functions.  HB 197 provisions are set to sunset on December 1, 2020 while school districts continue to face the COVID-19 pandemic, state of emergency, and related challenges.

However, the Ohio House and Senate recently passed HB 404 with substantial revisions (originated to address an exception of the Open Meetings Act for institute of higher education) to provide a continuance of essential operations and extend many of the HB 197 provisions into the summer of 2021.  Once signed by Governor DeWine, HB 404 will become effective immediately.

The points below summarize the provisions of the HB 404, which affect K-12 schools in Ohio:

• Open Meetings
  • Extends until July 1, 2021, the temporary authorization for Board meetings and hearings to be held and attended via electronic technology, as summarized in a previous Walter Haverfield client alert.
• Licensure
  • Licenses and certificates issued by ODE, which expire on or before April 1, 2021, will remain valid until July 1, 2021.
• Evaluations
  • Performance evaluations for teachers, school counselors, administrators, and superintendents may be suspended by the school board for the 2020-2021 school year, if the evaluation has not already been completed for this year and the school board determines it would impossible or impracticable to complete it.  The board may collaborate with bargaining units to make this determination.  If evaluations are suspended, an employee shall be deemed not have been evaluated for purposes of section 3319.11 of the Revised Code.  However, the legislation specifies that a board is not precluded from using an evaluation completed prior to the effective date of HB 404 for employment decisions.
  • Extends the prohibition against using value-added data, other high-quality/metric student data, or academic growth data to evaluate positive student outcomes attributable to a teacher, principal, or school counselor while conducting performance evaluations.
    • Specifies that a teacher who does not have a student growth measure as part of an evaluation for the 2020-2021 school year must remain at the same point in the teacher’s evaluation cycle, and retain the same evaluation rating, for the 2021-2022 school year as for the 2019-2020 school year. This is in addition to teachers remaining at the same point in the teacher’s evaluation cycle and at the same rating for the 2020-2021 school year, which is already included under current law.
  • Extends the authority for a school district that did not participate in the teacher evaluation pilot program established for the 2019-2020 school year to continue evaluating teachers on two-year or three-year evaluation cycles, even if the district completes an evaluation for those teachers in the 2020-2021 school year without using a student growth measure.
• State-Mandated Testing & Health Screenings
  • A school district may administer, but may not be penalized for failing to administer to a “qualifying student,” the kindergarten readiness assessment, any diagnostic assessments, or the third-grade English language arts achievement assessment during the fall of 2020.
  • A school must conduct the required health screenings for kindergarten and first-grade students who have not received those screenings for the 2020-2021 school year by the time HB 404 goes into effect. The school may forego the screenings until it can be safely conducted for a “qualifying student” and may not be penalized for failing to conduct such health screening prior to November 1, 2020.  But, if the health screening is requested by a parent, it must then be conducted.
  • For purposes of the above state testing and health screening provisions, a student is a “qualifying student” if:
    • The student is being quarantined;
    • The student, or a member of the student’s family, is medically compromised and the student cannot attend school (or another physical location outside of the home) for the testing/screening;
    • The student resides in an area that is subject to a stay-at-home order issued by the Governor, the Department of Health, or a local board of health; or
    • The student is receiving instruction primarily through a remote learning model up through the deadline for the assessment/screening and it cannot be administered remotely.
  • College Credit Plus
    • Extends the Chancellor of Higher Education’s authority, in consultation with the Superintendent of Public Instruction, to extend, waive, or modify requirements of the College Credit Plus Program for the 2020-2021 and 2021-2022 school years, if necessary in response to COVID-19.
  • Seamless Summer Food Program Regulation
    • Extends the Director of Agriculture’s temporary authority to exempt a school from regulation as a food processing establishment until July 1, 2021, if the school:
      • Has been issued a food service operation license; or
      • Is transporting food only for purposes of the Seamless Summer Option Program or the Summer Food Service Program administered by the U.S.D.A.

Feel free to reach out to any Walter Haverfield Education attorney here with questions regarding options for your board. We are happy to help with any challenges your district may be experiencing.

Lisa Woloszynek is an attorney at Walter Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.