Christina PeerMarch 16, 2020 

On March 14, 2020, the Ohio Department of Education (ODE) issued a Frequently Asked Questions (FAQ) document designed to “help school and district leaders think through important local-level decisions.”  The FAQ document indicates it was developed in partnership with Ohio’s education associations as well as some of Ohio’s most trusted and innovative district leaders.  The FAQ document will be updated on a regular basis as events unfold.

The FAQ document seeks to answer a number of questions that arose in the wake of Governor Mike DeWine’s announcement that schools would be on an “extended spring break” for the next three weeks.  Questions immediately arose regarding what this “extended spring break” meant with respect to school operations.  The FAQ document provides guidance from the Ohio Department of Health (ODH) indicating that the “closure does not include administrators, teachers, staff, vendors or contractors of a school.”  Additionally, per ODH, “[t]he administration of each school shall determine the appropriate level of access to the school during the closure.”  Moreover, the FAQ document notes that the term “closure” reflects the concept “closed to students.”  This distinction is critical as schools determine how to proceed in the wake of this unprecedented situation.

The FAQ document makes clear Governor DeWine’s intention that schools will continue to provide educational opportunities, through alternate means, throughout the closure.  It urges school leaders, boards of education and union leadership to “work in partnership to maintain continuity of educational services as much as practicable during this unprecedented health crisis.”  Options covered in the FAQ document include the expanded use of “blizzard bags” and online learning.  Further, all students will be counted as “in attendance” for EMIS purposes for all non-spring break days during the closure.

The FAQ document makes clear that teachers, and other district personnel, are expected to continue working during the closure.  District leaders are urged to be “flexible” regarding how work is being completed, recognizing that some employees might have child-care issues or health-related issues that require additional flexibility.  For hourly employees, the FAQ document indicates that these individuals should “continue to report to school and partner with their schools and be paid consistent with Collective Bargaining Agreements or employee contracts.”  Employees are also urged to “be flexible in the manner in which they contribute to the continuity of operations.”

Not surprisingly, the FAQ document cannot answer all of the questions that have arisen due to the closure.  However, the Ohio Department of Education (ODE) has affirmed its commitment to work with the Ohio General Assembly and/or federal agencies regarding numerous important issues including:

  • State testing and the impact on state report cards;
  • Minimum instructional hours required by state law; and
  • Compliance with timelines for students with disabilities (e.g., completion of evaluations, IEP annual reviews, etc.).

At this juncture, there is no definitive guidance regarding these issues.  With respect to teacher evaluations, school districts and unions are urged to develop a Memorandum of Understanding regarding timelines set forth in Collective Bargaining Agreements.  No guidance was provided regarding statutory time frames.

School districts should continue to closely monitor developments and consult legal counsel as needed.

Susan Keating Anderson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at sanderson@walterhav.com or at 216-928-2936.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

 

Megan Greulich

March 16, 2020 

On Friday, March 13, Ohio Attorney General Dave Yost (Yost) released a letter to local officials regarding the applicability of Ohio’s Open Meetings Act (OMA) during the COVID-19 pandemic. In his letter, Yost stated that “under this very limited fact pattern, there may be a basis for local public bodies to use electronic means to meet and comply with the law.”

During prior communications, Yost noted that OMA does not contain an exception to the “in person” requirement for public officials during a declared emergency, but his most recent letter highlights the Order issued by Dr. Amy Acton Director of the Ohio Department of Health (ODH), which gives ODH “ultimate authority in matters of quarantine and isolation.” The Order prohibits mass gatherings and recommends social distancing, which is defined as staying approximately six feet away from other people. Yost’s letter also highlights recommendations from recent press conferences held by Dr. Acton and Ohio Governor Mike DeWine at which Ohioans were urged to stay home and avoid unnecessary contact with each other to the extent possible. Additionally, the United States Centers for Disease Control also issued recent guidance with regard to the COVID-19 pandemic suggesting use of videoconferencing for meetings when possible. As a result of the Order and subsequent recommendations, Yost notes that a public body’s ability to comply with terms of the Order and OMA may be compromised and because the business of government must continue, the two must be reconciled.

To that effect, Yost’s letter provides that in this limited circumstance, it is reasonable to read OMA’s “in person” requirement to permit a member of a public body to appear at a public meeting via teleconference or telephone. Yost notes that even though this interpretation is reasonable and applicable in this specific situation, all other OMA requirements still must be met. For instance, regardless of whether a meeting of a public body occurs in person or electronically, quorum must be met for a meeting to occur. Additionally, Yost recommends that a public body cease discussions and deliberations if a member appearing electronically inadvertently is disconnected, until such member can reconnect.

Yost also addressed the openness of public meetings with regard to provision of access to the public. In doing so, he reiterated the guidance provided earlier in the week, stating that OMA does not specifically define how a meeting must be made open to the public, and in complying with Dr. Acton’s Order, it is OMA-compliant to provide such public access via live-streaming through internet or television. Public bodies should note that where a public body is meeting electronically and access to the public is provided electronically, the public body must ensure that the public is able to hear all discussions and deliberations of all members, even those attending via telephone or other electronic means. Public bodies should keep in mind that even in light of this new guidance, all notice, executive session, and meeting minute OMA requirements still apply.

Yost noted that the above-described practices likely satisfy OMA requirements in light of Ohio Revised Code (RC) 5502.24(B), which was addressed in our March 12 client alert. Yost notes that during this declared emergency, certain OMA requirements are likely to fall into the category of “imprudent, inexpedient, or impossible” allowing governing bodies to “dispense with legal requirements that qualify as ‘time-consuming procedures and formalities.’” In closing, however, Yost cautioned against using such procedures and relying upon his guidance to enact changes unrelated to the instant emergency that could be reserved for a later date when the normal operations of government resume. In implementing this guidance, it is important for public officials to seek legal advice to ensure any actions that deviate from the normal operation of government are fully vetted for legal compliance in advance of such action.

To that end, please feel free to reach out to any Walter | Haverfield attorney if we can be of assistance. We will continue to keep clients informed as guidance is updated from the U.S. Department Of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

 

 

Lisa Wososzynek

March 13, 2020

Ohio schools are actively instituting Governor Mike DeWine’s mandatory three-week closure of all elementary and secondary schools, including public, private, and charter schools, in an attempt to battle the spread of the novel coronavirus (COVID-19). This comes at the same time that schools across the state were gearing up for spring testing season, in compliance with the Elementary and Secondary Education Act of 1965 (ESEA). While there have not been any definitive decisions released yet by the Ohio Department of Education (ODE) regarding how the school closures will impact student testing, the U.S. Department of Education (DOE) released guidance on March 12th, 2020. The guidance sheds some light on what’s to come and hopefully provides a little relief to districts that are concerned about their ability to meet testing requirements. It also addresses the potential impact of attendance performance ratings.

Generally, assessment requirements and accountability measures impact Academic Achievement indicators used to rate each school district’s performance (School Report Cards). Traditionally, the DOE does not grant statewide waivers of assessment requirements, such as the required 95% assessment participation rate or chronic absenteeism, due to the valuable information these assessments provide. However, due to the potential impact of COVID-19, the DOE  stated in its March 12th guidance that if it becomes “not feasible” for a state to administer assessments (in part or full), it will consider targeted one-year waivers of assessment requirements. The guidance also addresses the option for a state to consider whether it is possible to adjust or extend the testing window to accommodate as many students as possible, and it acknowledges the potential impact that COVID-19 may have on other ESEA requirements, such as fiscal allocation of funds.  The DOE indicated that it will continue to address these issues as developments occur.

As for the ODE, it has communicated that its priority is to keep our students and communities safe, and “any concerns about the administration of state assessments can and will be addressed, if necessary, after student health and safety have been assured.” Prior to the mandated closure by Governor DeWine, the ODE had taken the position that spring test administration remained on schedule; with the mandated closure of schools now in place, and subject to possible extension, we also expect further clarifications from the ODE in the coming weeks, including potential adjustments to the testing time frame and/or its intent to seek a waiver from the DOE for certain testing requirements.

We will continue to update you on ESEA-related issues as more information is released from federal and state agencies so that we can all adjust to this, hopefully temporary, “new normal.”

Susan Keating Anderson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at sanderson@walterhav.com or at 216-928-2936.

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

 

Kathryn PerricoChristina Peer

March 13, 2020

In a press conference on March 12th, 2020, Governor Mike DeWine directed that, in order to prevent the spread of coronavirus (COVID-19), all elementary and secondary schools, including public, private, and charter schools, close for a three-week period beginning at the end of the school day on March 16th, 2020. We understand that many of you may be proactively closing in advance of this deadline, and we want to take the earliest opportunity to share with you general guidelines regarding the provision of continued services and educational opportunities to students with disabilities following the March 12th, 2020 release of the U.S. Department of Education’s (DOE) question and answer document that addresses how to provide services to children with disabilities during a COVID-19 outbreak.

While it is important to note that neither the IDEA, Section 504 of the Rehabilitation Act of 1973, or Title II of the Americans with Disabilities Act specifically address requirements for the provision of services to students with disabilities during extended and unexpected school closures, it is equally important to remember that students with disabilities do not automatically lose their rights, or have those rights suspended, during an extended closure.  During the press conference, Governor DeWine stated that school districts will have the ability to make local decisions regarding whether, and to what extent, programming may be provided electronically/remotely to students. Once a district determines that it is providing distance learning services to regular education students, it must provide commensurate services to students with disabilities. In the event that a district is providing no services to any students during the closure, per the March 12th DOE guidance, it remains obligated, once school resumes, to convene the IEP team to determine “whether compensatory services are needed under applicable standards and requirements.” The Ohio Department of Education’s Office for Exceptional Children (ODE/OEC) has not yet issued guidance regarding this issue.

Because districts are required to provide commensurate services, once a district determines it is providing distance learning services to all students during an extended break, district staff and IEP teams must make determinations regarding appropriate services to be delivered to students with disabilities that will allow them to continue to access the curriculum and make progress on IEP goals in a fashion commensurate to the opportunities being provided to non-disabled students. Service providers should carefully document services provided during this time. Where this is not possible through distance learning, teams should make individualized determinations, in concert with the department of health and individual health care providers as appropriate, about whether direct services are viable, and to what extent. Where direct services and distance learning are both inappropriate, teams should reconvene after school reopens to determine what level of compensatory services may be required to meet the FAPE requirement.

At this point, neither the DOE nor ODE/OEC has provided any relief from adherence to the IDEA’s mandated timelines for the completion of IEP annual reviews and evaluations. Districts are urged to remember that remote meetings are acceptable if properly noticed through the formal meeting invitation. Every effort should be made to adhere to applicable deadlines, including deadlines for IEP annual reviews. Staff should be reminded to document all attempts to obtain parent participation in the annual review meeting. In the event an evaluation of a student with a disability is underway or coming due, teams should assess whether the evaluation can safely continue in light of the COVID-19-related closure. If completion is not feasible, the team can consider conducting a records review, in order to adhere to deadlines, followed by completion of the evaluation, as indicated in the planning form, upon the resumption of school. For initial evaluations, districts are encouraged to consult with counsel as the specific facts of each case will guide the appropriate course of action. Importantly, all decisions made regarding IEPs and evaluations must be documented in a prior written notice.  Prior written notices should be comprehensive and include details regarding the decision and the basis for the decision – including documenting all attempts to include parents in the process.

It is also worth noting that DOE guidance allows for the use of IDEA part B funds for activities that directly relate to providing, and ensuring the continuity of, special education and related services to children with disabilities, such as dissemination of COVID-19 information or the development of emergency plans for students with disabilities during the closure or in relation to the outbreak. Situations involving students in outside placements that may not be subject to the mandated closure, or whose particular health conditions require that they remain excluded from school once it resumes are also important to consider, but given the nuances of such situations, consultation with counsel is suggested.

As indicated in prior alerts, we will keep clients informed as guidance is updated from the U.S. Department Of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities. As always, feel free to contact any Walter | Haverfield attorney if we can be of assistance.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

Megan Greulich

March 12, 2020

Ohio’s Open Meetings Act and COVID-19

With many questions circulating regarding the application of Ohio’s Open Meetings Act (OMA) in light of Governor Mike DeWine’s recent guidance on COVID-19 and mass gatherings, Ohio Attorney General Dave Yost hosted a Facebook Live video this afternoon to help shed some light on the situation.

Yost referenced Ohio Revised Code (R.C.) 5502.24, which provides certain alternate arrangements for conducting public affairs when they are imprudent, inexpedient, or impossible due to an emergency. The provision also provides that “such powers and functions may be exercised in the light of the exigencies of the emergency without regard to or compliance with time-consuming procedures and formalities prescribed by law pertaining thereto, and all acts of that body and officers shall be as valid and binding as if performed within the territorial limits of their political subdivision.”

As a result of the Governor’s declaration of a state of emergency, Yost made it clear that while R.C. 5502.24 does not allow for suspension of OMA requirements, it does allow for public bodies to adjust practices with regard to items such as meeting notices. In regard to board meetings, Yost reinforced that board members of public bodies still must meet in person in order to deliberate, vote, and be counted for quorum. He did, however, note that there is no requirement that boards of education allow the public to be physically present at such meetings. Yost stated that electronic access to a board meeting, such as a live feed, would be sufficient to serve as appropriate access by the public to an open meeting of a board of education.

Each year, the Ohio Attorney General’s Office (AG) releases a revised version of its Ohio Sunshine Laws Manual (commonly referred to as the “Yellow Book”) prior to Sunshine Week. In light of the increase in questions surrounding OMA and COVID-19, the AG released the revised 2020 Yellow Book on Thursday, March 12, 2020. Pages 108-109 address OMA issues related to these questions. The Yellow Book is available for download on the AG’s website here.

School Closures

In light of COVID-19 guidance, Governor DeWine announced during his afternoon press conference that schools will be closed for an extended spring break beginning at close of the school day on Monday, March 16, 2020 and extending for three (3) weeks until April 3, 2020. During this period, DeWine noted that local boards of education will have the ability to make local decisions with regard to both the extent to which building access may be allowed for certain individuals and the extent to which programming may be provided electronically/remotely to students.

In addition to these announcements, Governor DeWine also noted that his office and the Ohio Department of Education will be working together to ensure that any deadlines and requirements that may be missed as a result of the closure or other COVID-19-related precautions will be addressed and waived where possible. This includes any state testing requirements. Additional guidance with regard to precautions to slow the spread of COVID-19 are available on the Ohio Department of Health’s website.

We will keep clients informed as guidance is updated from the U.S. Department of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities. As always, feel free to contact any Walter | Haverfield attorney if we can be of assistance.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

 

James McWeenyPeter Zawadski

March 10, 2020

COVID-19, also known as coronavirus, (a new respiratory virus strain), is spreading rapidly.  In the span of just a few short months, the virus has spread around the globe to our doorstep here in Ohio.  On March 9, 2020, the Ohio Department of Health announced three positive cases of COVID-19 in Cuyahoga County.  This number is expected to rise.  For now, COVID-19 is here to stay.

Ohio school districts are on the front lines of the COVID-19 fight. School districts must be proactive and timely prepare for the spread and impact of COVID-19.  Preparation should include prospective consideration of and planning for how best to address various COVID-19 challenges that are likely to arise in schools.  For example, school districts should:

  • Review, become familiar with, ask questions about, and be ready to implement school safety/emergency management plans.  These plans establish procedures for determining when to close a school; how to communicate information to families, students, and staff about school closings; and decontamination of school facilities.
  • Contact the district’s local health department and county emergency management agencies to establish or refresh connections with those armed with facts.  These agencies can help ensure that the district’s safety plan is current, effective, and suited to respond to COVID-19 in schools.
  • Learn and share with students, staff, and families – in visible and easily understandable language – precautionary measures called for by the Centers for Disease Control and Prevention, the Ohio Department of Health, and local health departments.
  • Prepare for staff and student absences as well as school closings.  The Ohio Department of Education recently announced that, when dealing with COVID-19-related absences and school closings, district leaders should work with local health departments to make decisions that prioritize the health and safety of students and the community.  This means that anyone (students or staff) with COVID-19 symptoms should stay home and receive testing and treatment.  According to the Ohio Department of Education, instructional time, student testing, and other related issues will be addressed down the road when it is safe.
  • Review and if necessary revise impacted district policies, including non-discrimination and student/employee absence policies (such as those rewarding “perfect attendance”).
  • Assess existing collective bargaining agreements, particularly terms affecting employee absence, and evaluate the ongoing need for contract amendments, understandings, or other contract “work-arounds” that are necessary in the wake of COVID-19.
  • In conjunction with local health departments, plan for and implement protocols for students and staff who – in light of the upcoming spring break – are returning to school from international and national travel as well as students and staff who attend school with COVID-19 symptoms and/or attended school before testing positive for COVID-19.
  • Request that parents and staff members proactively report any potential exposure (e.g., contact with an individual who has tested positive) so that appropriate measures can be taken.  Set up a system to review information received and make decisions regarding the impact of this information.

Now more than ever, Ohio school districts are tasked with actively monitoring, preparing for, and responding to COVID-19.  Legal counsel can help.  Contact your attorneys to help navigate the many different challenges presented by the novel COVID-19.

James McWeeney is an associate at Walter | Haverfield who focuses his practice on education law, labor and employment and litigation. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.

 

 

Kathryn PerricoLisa Wososzynek

March 19, 2020

As we all continue to navigate the ever-evolving landscape of the COVID-19 crisis and review the various guidance documents from federal, state, and local officials, several guiding principles have begun to emerge in relation to the provision of services to students with disabilities.  First, students with disabilities are entitled to commensurate distance learning opportunities as those being provided to their typical peers.  Second, decisions relating to evaluations of and services for students with disabilities must be individualized; and third, documentation of decisions and the rationale for those decisions will be critical in establishing that a district did not discriminate and did the best it could under the circumstances to satisfy the obligation to provide a free, appropriate, public education to students with disabilities.

While districts are encouraged to continue to communicate with all families about the educational services being provided during the restriction on student attendance, documentation about specific decisions relating to students with disabilities should occur through the use of the Prior Written Notice form (“PR-01” or “Notice”).  PR-01s must be issued by districts when they are proposing or refusing to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. But there is no regulation restricting when PR-01s may be issued, and many of the individual decisions districts are now making will fall into this discretionary category, but are nevertheless highly recommended.  Even where the PR-01 itself may arguably not be mandatory, the content of the Notice must still include the following:

  • A description of the action proposed or refused by the school district
  • An explanation of why the school district proposes or refuses to take the action
  • A description of each evaluation procedure, assessment, record, or report the school district used as a basis for the proposed or refused action.
  • A statement that the parents of a child with a disability have protection under the procedural safeguards.  SeeA.C. 3301-51-05(H)(2).

As always, as teams prepare these PR-01s, remember to include thorough descriptions of the considerations and circumstances and avoid “boilerplate” responses.

Although recent guidance from the Office for Civil Rights suggests that certain blanket rules may be applied to the evaluation of students with disabilities, districts are encouraged to still make individualized decisions regarding whether and how to proceed with evaluations during this period of restriction on school attendance.  Some factors to consider are:

  • Is there another available means to gather similar information? Is there available data from tiered interventions and classroom performance? Are there any means to gather academic performance data through available online platforms (e.g. curriculum based assessments, progress monitoring tools, etc.)?
  • Are there available assessment results? Historical data? Have assessments such as cognition been administered in the past? Were the results consistent?
  • Is an observation truly necessary to determine special education eligibility and identify the student’s needs? Can an observation be conducted in the current learning setting and still provide pertinent information to the evaluation? Is there a way to observe through the online learning platform? Are teachers able to provide you observation information from recent classroom instruction (even though it will likely not be systematic observation data)? Can you gather similar information through interviews or rating scales?

As teams navigate these considerations, be sure to include parents in the team discussions and decision making and avoid unilateral decisions made by limited team members. While Ohio’s Operating Standards do not require parental consent for teams to conduct records reviews, parents should be involved in discussions regarding whether a record review will be used (in part or in whole) to complete the evaluation. Parental participation is an ongoing requirement and should be documented in the PR-01.

The Ohio Department of Education’s Office for Exceptional Children has issued new guidance which is available here. This guidance covers a wide array of topics.  We will provide a further alert to clients as soon as possible.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

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

Lisa BurlesonChristine CosslerChristina PeerKathryn Perrico

 

 

 

 

March 23, 2020

On March 18, 2020, the Ohio Department of Education (ODE) issued guidance entitled Consideration for Students with Disabilities during Ohio’s Ordered School-Building Closure. The guidance, as currently written, raises significant questions and related issues as outlined below. School districts are encouraged to contact the ODE directly or through a professional organization with follow-up.

Evaluation Team Reports

The feasibility of completing both initial and reevaluations in a timely fashion is an issue districts are facing. Districts are urged to utilize conference calls and videoconferencing to complete evaluations whenever viable. Signatures can be collected via electronic means, and the meeting, including the means by which the team met and how signatures were collected, should be documented via a prior written notice. It will be important to carefully document how the electronic signatures were obtained to avoid any potential fraud or falsification claims. It will also be important to clearly document how the meeting was conducted in a remote setting to ensure FERPA compliance. The United States Department of Education (USDOE) issued guidance acknowledging that, in instances where face-to-face testing or observations are needed, evaluations will “need to be delayed” until schools reopen to students. Students who were already identified, for whom a reevaluation was pending, would continue to be deemed eligible and should continue to receive services under their individualized education plans (IEPs), although teams can consider whether completion of the evaluation by way of records review is most appropriate. This guidance has been issued by both the United States Department of Education and the Ohio Department of Education.

However, ODE’s March 18th guidance has created confusion regarding initial evaluations. The guidance states: “If the school was scheduled to conduct an evaluation team report review prior to the ordered school-building closure period but was unable to complete it, then consider the student eligible and provide services to students based on your school or district’s processes and procedures.” The language appears to indicate that students who are undergoing an initial evaluation that cannot be completed should be considered eligible under the IDEA until the evaluation can be completed and the team can meet. If this was the intent of the ODE guidance, it raises significant concerns. It would require school districts to provide IDEA services for students absent an evaluation, finding the student eligible. Plus, it would require the development of an IEP without an evaluation team report to drive the goals and services.

To be clear, despite this confusion, we are not recommending that districts make initial eligibility decisions unless the evaluation can be completed and the team can meet (either in person or via phone or videoconference). There may be some instances where an initial evaluation can be completed during the school closure. If the evaluation cannot be completed, a prior written notice indicating that the evaluation will be delayed should be sent. The prior written notice should also indicate that the reason for the delay is the need for face-to-face assessments or observations. Students who were receiving interventions during the evaluation process can, and should, continue to receive these interventions until the evaluation can be completed. The continuation of these interventions should also be noted in the prior written notice.

Amendments to Individualized Education Plans

ODE’s March 18th guidance has also created significant concerns regarding amendments to IEPs. ODE’s guidance states: “School or district personnel should review each IEP to determine the type and frequency of services each student will require during the ordered school building-closure period. If adjustments to specialized services are needed, school personnel should convene the IEP team to review and determine specific services that will be provided during the ordered school-building closure period and revise the IEP accordingly.” This guidance is contrary to the position taken by the USDOE which is not recommending that IEP teams reconvene to make amendments based on changes caused by school closures. Following ODE’s guidance in this area would require school districts to reconvene the IEP teams for every student on an IEP and make changes to the IEP based solely on changes caused by the school-building closure – not based on changes in the student’s needs. Teams would then need to reconvene when school buildings reopen to amend IEPs to reflect in-person services. As IEP services should be driven by student need, not which services can be provided due to outside circumstances, we are not recommending that districts reconvene all IEP teams to make amendments at this time. Instead, districts should continue to assess needs of students on an individual basis, including whether any changes to services are necessary due to the mandated school-building closure. Districts should also communicate with parents via prior written notice, or other means, regarding how and to what extent services will be provided during the mandated school-building closure. See the USDOE Supplemental Guidance issued March 21, 2020, linked here for guidance on amendments during this time.

Compensatory Services and Extended School Year Services

With respect to compensatory services, both the USDOE and the ODE have indicated that individual decisions will need to be made for all students regarding whether, and to what extent, compensatory services are needed based on the mandated school-building closure.  However, at this point, no guidance has been provided regarding how to determine whether students on IEPs are entitled to compensatory services. When providing services during the school-building closure, service providers must keep accurate and detailed records of the services provided.  We will continue to monitor for further guidance.

Regarding extended school year services, districts should note that the decision regarding extended school year eligibility is distinct from the decision regarding compensatory services.  These decisions should be based on regression/recoupment data that has been gathered throughout the school year, including, as may be applicable and appropriate, recoupment data after the present closure comes to an end. While compensatory education and extended school year could be provided over the summer by the same service providers, these decisions are distinct. We will continue to monitor this issue for further guidance as well.

If you have any questions, please contact a Walter | Haverfield attorney. We are here to help.

Lisa Burleson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at lburleson@walterhav.com or at 616-246-2156.

Christine Cossler is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at ccossler@walterhav.com or at 216-928-2946.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

Lisa Burleson Lisa-WoloszynekMarch 25, 2020 

Currently, Ohio is under a “Stay At Home” Order, which is effective March 23, 2020 through April 6, 2020. The Order, issued by Ohio Department of Health Director, Dr. Amy Acton, requires all individuals currently living within Ohio to stay at home or at their place of residence with certain exceptions. These exceptions permit individuals to leave home for essential activities, such as those for health and safety, to obtain necessary services and supplies, and to engage in certain outdoor activities. The Order’s intention is “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.”  This Order also forces non-essential businesses and operations to cease operations during the period the Order is in effect, with only some very specific exceptions. Importantly, educational institutions, including public and private K-12 schools, are to continue to perform essential functions, and the Order does not change or supersede Dr. Acton’s March 14, 2020 Order suspending student attendance in all K-12 schools from March 17th through April 3rd.

Who determines a school’s essential functions?

While school boards are ultimately responsible for school operations, Ohio Revised Code 3310.01 designates the Superintendent as the executive officer of the board.  As such, the Superintendent is responsible for ensuring the continuation of essential daily operations.  In conjunction with the district’s Treasurer, the Superintendent should identify and manage the majority of essential school functions during the mandated Stay At Home Order, but should work with the Board to address any areas that are beyond the Superintendent and Treasurer’s express and implied authority.

What is considered an essential school function?

There are a variety of school functions that are clearly understood as essential from the Stay At Home Order and other recent Orders issued by Ohio Governor Mike DeWine and the Ohio Department of Health.  At this time, the most important essential function of a school is to continue to provide and facilitate distance learning for its students.  This will include activities that are necessary to allow employees to continue to work remotely or as may be properly designated by the Superintendent.  Meal services for students will also remain essential.  Schools should continue to consider creative alternate options to providing meals, such as a reduced frequency of meal preparation, providing families with a larger quantity of meals at one time, and distributing meals in a manner that limits exposure of school staff to community members. It will also be essential for schools to continue to process payroll and benefits for employees. Board meetings would also be considered essential; however, boards should utilize the latitude granted to them to hold meetings in a manner that limits in-person contact while remaining vigilant about public access requirements and participation in voting.

Other school functions may need further analysis to determine whether they are “essential” and will need to be identified by each individual school district. Those functions include management of employee issues, such as the completion of ongoing investigations, discipline proceedings, processing requests for leave and other human resources matters.  Schools will also need to manage requests for public records and student educational records that might be made during the effective period of the Stay At Home Order. Additionally, it is important that school facilities are maintained during this time to ensure a safe and clean workplace for those essential employees who are still physically reporting to work. School districts need to exercise caution and not simply assume certain functions are or are not essential. For example, schools should consider available options like video conferencing for essential tasks, such as to continue mandated employee discipline procedures, or to complete interviews for complaint investigations.

What are the requirements while schools continue to operate for essential functions?

The Stay At Home Order requires that everyone continue to practice social distancing (six feet) as much as possible and employers implement a number of actions, including:

  • Allowing as many employees as possible to work from home
  • Actively encouraging sick employees to remain at home until, without any medication, they are fever-free without medication for at least 72 hours “AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began”
  • Ensure sick-leave policies are “up to date, flexible, and non-punitive”
  • Limit group sizes to ten people or less
  • Perform frequent cleaning of commonly touched surfaces such as workstations, counters, railings, door handles, and doorknobs

Ohio’s Superintendent of Public Instruction, Paolo DeMaria, has indicated that the Ohio Department of Education will continue to update information on its website. Also, Ohio Governor DeWine has conveyed that he intends to ask the Ohio General Assembly to approve a number of measures addressing issues ranging from forgoing state-mandated testing in schools for the rest of the school year to providing public entities with the ability to use electronic means for conducting official public meetings. State legislators are expected to continue work on these measures. We will continue to monitor and provide updates as warranted.

If you have questions regarding essential school functions or school district obligations during this uncertain time, please contact a Walter | Haverfield attorney.  We are here to help and will continue to provide updates as we receive them.

Lisa Burleson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at lburleson@walterhav.com or at 616-246-2156.

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

Christina PeerMarch 30, 2020 

On March 27, 2020, the Ohio Department of Education issued updated guidance clarifying its previously issued guidance document of March 18, 2020 entitled “Considerations for Students with Disabilities during Ohio’s Ordered School-Building Closure.” The updated guidance document attempts to clarify some of the concerns raised by stakeholders in an attempt to interpret the March 18 guidance document.

Some key points contained in the updated guidance document are:

  • Schools should prioritize taking all necessary steps to protect the health and safety of students and discourage activity that could contribute to the spread of the coronavirus.
  • Schools should work to provide education to all students through alternative means.
  • Recognition that schools may not be able to provide all services in the same manner they are typically provided. However, schools should “continue to try to provide a Free Appropriate Public Education (FAPE) while balancing the need to protect the health and safety of students with disabilities during this national health emergency.”
  • When using alternative delivery models, districts “should make a good faith effort within available capabilities” to determine how FAPE will be provided.
  • Emphasis on the need for schools and parents to “work together collaboratively” to find ways to educate students with disabilities.

The updated guidance document also clarified, to some extent, a question regarding evaluations that were underway, but not complete, at the time of the ordered school-building closure. The updated guidance indicates that if a reevaluation was underway at the time school buildings closed and that reevaluation cannot be completed at this time due to the order, school districts should “continue to provide services in accordance with the information provided” in the guidance. Districts should interpret this to mean that students should continue to receive IEP services, to the extent feasible, as noted above, and consistent with the terms of such services that were in place prior to the ordered school-building closure.

Notably, no additional guidance was provided regarding initial evaluations.

The updated guidance also states that if a district shifts instruction to an alternative mode for all students due to the school-building closure, “it is not required to convene the IEP team or amend the IEP for the sole purpose of the school-building closure.” However, “if a student with a disability cannot access the alternative service delivery model being offered to general education students, the district should consult with the student’s parents to determine the needs of the student and identify the most appropriate means for meeting those needs during the ordered school-building closure.”  The guidance goes on to note that if an IEP team meeting is necessary or requested, the meeting should be held virtually or by phone.

It remains unclear what, if any, relief will be granted to school districts from the IDEA’s procedural and substantive requirements. To date, there is also no guidance regarding what standards will be applied to claims for compensatory education that parents might raise after school operations return to normal. It is imperative that individuals, school districts and professional organizations advocate for the type of relief schools will need given the impact of the pandemic on the ability of educators to deliver instruction and related services. Please share with your elected representatives (federal and state) the efforts your school district is making to serve students with disabilities and the need for a commonsense application of the IDEA’s requirements given the unprecedented school-building closures.

If you have any questions about the updated guidance, please reach out. We are happy to help.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

On March 27, 2020, Ohio Governor Mike DeWine signed into law emergency legislation that addresses the urgent needs of the State due to the COVID-19 pandemic. H.B. 197 goes into effect immediately. The new law addresses a wide range of issues, including the following:

Expectation of continuation of educational opportunities:

  • School districts are expected to provide ways to keep students actively engaged in learning from March 17, 2020 through the end of the school year.
  • School districts are also expected to grant students, who require access to in-person instruction in order to receive a diploma or complete a career technical program, access to these opportunities as soon as is reasonable after being deemed permissible by the Director of Health, even if this access occurs after the last instructional day of the school year.

 Make-up days or hours:

  • In order to make up days or hours that schools were closed during the 2019-2020 school year, per the Director of Health’s March 14, 2020 Order, schools may either:
    • Amend an existing plan to require students to access and complete classroom lessons in order to make up hours in the 2019-2020 school year for which it was necessary to close schools based on the Director of Health’s Order; or
    • Adopt a plan to require students to access and complete classroom lessons in order to make up hours for the 2019-2020 school year for which it was necessary to close per the Director of Health’s Order.
  • Amending an existing plan or adopting a plan can occur at any time after March 27, 2020.

 Authorization to extend or waive deadlines:

  • Authorizes the Superintendent of Public Instruction to extend or waive most deadlines as necessary to ensure that the safety of students, families, and communities are prioritized while continuing to ensure the efficient operation of the Department and schools.
  • Deadlines that may be extended or waived (but are not guaranteed at this time) by the State Superintendent include, but are not limited to, deadlines related to the following:
    • Employee evaluations
    • Notices of intent to not reemploy school personnel
    • Conducting school safety drills
    • Emergency management tests
    • Filling board of education vacancies
    • Updating teacher evaluation policies to conform with the new evaluation framework
    • Identification and screening of gifted students

 Provision of services via electronic delivery or telehealth:

  • Allows for services, both educational and therapeutic, to be provided via electronic delivery method or telehealth to any student who was receiving those services at the time of the March 14, 2020 Order closing school buildings.
    • This applies to students being served in public and private schools and students being served by providers under the Jon Peterson Special Needs Scholarship Program and the Autism Scholarship Program.
  • Prohibits licensure boards from taking disciplinary action against a license holder who provides services to a student in this manner, including limiting, suspending, revoking or refusing to issue a license solely because the license holder provided these services during the time of the school closure.
    • Applicable to individuals licensed by:
      • Ohio Speech and Hearing Professionals Board
      • Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board
      • State Board of Psychology appointed under section
      • Counselor, Social Worker, and Marriage and Family Therapist Board
      • State Board of Education with respect to intervention specialists

K-12 School Testing, Accountability and Hours:

  • State-mandated K-12 student assessments for the 2019-2020 school year are eliminated.
    • This includes the Alternate Assessment for Students with Significant Cognitive Disabilities and the Ohio English Language Proficiency Assessment.
  • Ohio’s school district and school building report cards for the 2019-2020 school year are also eliminated.
  • The Ohio Department of Education is prohibited from:
    • Assigning letter grades to buildings or districts
    • Establishing rankings based on report card data
    • The Ohio Department of Education is also authorized to create “safe harbor” for schools and districts to ensure data from the 2019-2020 school year will have no effect in determining sanctions or penalties.

Third-Grade Reading Guarantee:

  • Prohibits the retention of students under the third-grade reading guarantee based solely on the student’s academic performance in reading during the 2019-2020 school year unless the student’s principal and teacher agree the student is reading below grade level and is not prepared to be promoted to fourth grade.

Achievement tests for homeschooled students:

  • Prohibits requiring that the parent of any student who was instructed at home for the 2019-2020 school year to submit to the district superintendent the results of a standardized achievement assessment administered to the student as a condition of the district allowing the student to continue to receive home instruction for the 2020-2021 school year.

 Employee evaluations:

  • Prohibits using value-added progress dimension data from the 2019-2020 school year to measure student learning for a teacher’s evaluation.
  • For employee evaluations not completed by March 14th (the date of the Health Director’s order), the law allows school boards to elect not to conduct an evaluation for the 2019-2020 school year upon determining that doing so would be “impossible” or “impracticable.” If a board elects not to evaluate an employee, the employee must be considered not to have had evaluation procedures complied with for purposes of R.C. 3319.11, including non-renewal purposes.
  • Authorizes school boards to collaborate with unions representing employees in determining whether to complete evaluations for the 2019-2020 school year.
  • Permits districts to use evaluations completed prior to March 14th in employment decisions.

 Licensure extension:

  • Any licensure issued under the Ohio Revised Code (such as drivers’ licenses, vehicle registration, teachers’ licenses, educational aide permits, and CCW licenses) that is set to expire during the period of emergency declared by Executive Order 2020-01D on March 9, 2020, remains valid until the earlier of either ninety days after the date the emergency ends or December 1, 2020. That’s unless the licensure is otherwise revoked, suspended, or subject to discipline or limitation under applicable law for reasons other than maintaining its validity during the period of the COVID-19 emergency. Also, if a person is required by law to take action to maintain the validity of a license during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, the person shall take that action no later than the sooner of either ninety days after the date the emergency ends or December 1, 2020.

Provisional licensure:

  • The State Board of Education may issue a one-year, nonrenewable provisional license to any individual to practice in any category, type, and level if the individual has met all requirements for the requested license except for the requirement to pass an examination prescribed by the State Board in the subject area for which application is being made.
  • Individuals receiving a provisional license under this language must take and pass the applicable subject area examinations prior to the expiration of the provisional license.

EdChoice Scholarship:

  • Scholarship renewals are allowed.
  • Prohibits any new performance-based voucher for the 2020-2021 school year, subject to certain stated exceptions.
  • Maintains 60-day window beginning April 1, 2020 for performance-based scholarships for eligible students for the 2020-2021 school year.
  • Processing performance-based EdChoice scholarships will begin on February 1, 2021 for the 2021-2022 school year.
  • Income-based EdChoice scholarships are unaffected.

 Graduation requirements:

  • Students enrolled in 12th grade in the 2019-2020 school year shall be granted a diploma in the following circumstances:
    • The student was “on track” to graduate prior to the March 14, 2020 Order, but has not met graduation requirements.
    • The student’s principal, in consultation with teachers and counselors, reviews the student’s progress toward meeting graduation requirements and determines that the student has successfully completed the curriculum in the student’s high school or the student’s individualized education program.
    • No district shall grant a diploma under these circumstances after September 30, 2020.
  • School districts with graduation requirements that exceed the state minimum requirements are authorized to utilize the state minimum requirements for the 2019-2020 school year.

Meals:

  • For the period of emergency declared March 9, 2020 but not beyond December 1, 2020, the Director of Agriculture may exempt a school from regulation as a food-processing establishment if two conditions are met:
  • The school was issued a food-service license under ORC Chapter 3717
  • The school is transporting food for purposes of Seamless Summer Option Program or Summer Food Service Program

 Open meetings:

  • Members of a public body are granted the authority, during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, but not beyond December 1, 2020, to hold and attend meetings and to conduct and attend hearings by teleconference, video conference, or any other similar electronic technology (“electronic means”).
    • The provisions extend to public bodies in counties, townships, municipalities at the local level as well as boards, commissions and other state-level entities.
    • Hearings are defined as administrative hearings, hearings defined by Ohio Revised Code 119.01, or other hearings at which individuals may present written or oral testimony on a matter before the public body.
  • Members attending meetings or hearings by electronic means are considered present as if they were attending in person, they are permitted to vote, and they are counted for the purpose of determining quorum.
  • Any public action taken by electronic means under these provisions has the same effect as if it were taken in an open meeting or hearing of the public body.
  • To comply with these emergency provisions, the following requirements must be met:
    • The public body must provide public access to a meeting held by electronic means or to any hearing that the public otherwise would be entitled to attend. Such access must be provided in a method similar to that which the meeting or hearing itself is being conducted.
    • Methods may include, but are not limited to, live-streaming via the internet, local radio, television, cable, public access channels, call-in information for a teleconference, or by any other similar electronic technology.
    • The public body must ensure that the public can observe and hear the discussions and deliberations of all members of the public body, regardless of how such members are participating.
    • The public body must provide notice of such meetings to the public and media that have requested such notice, and in the case of a hearing to parties required to be notified, at least 24 hours in advance of the meeting or hearing, by reasonable methods that allow for any person to determine the time, location, and manner by which the meeting or hearing will be conducted, except in emergency situations that require immediate official action.
    • In an emergency situation requiring immediate official action, the public body must immediately notify the news media that have requested notification of a meeting or the parties required to be notified of a hearing of the time, place, and purpose of the meeting or hearing.
    • When hearings are conducted via electronic means, the public body must use electronic equipment that is widely available to the general public to converse with witnesses and receive documentary testimony and physical evidence.
    • All other Open Meetings Act requirements not in conflict with these emergency provisions must be met.

Unemployment compensation:

  • Eliminates the work-search requirement during a declared public health emergency.
  • Eliminates the one-week waiting period during a declared health emergency.
  • Allows for benefits paid during a declared health emergency to be mutualized across employers.

2020 primary election:

  • The new mail-in ballot deadline is April 28, 2020.
  • No in-person voting is permitted.

The law also addresses various aspects of childcare access and state tax filing changes, among other changes.

If you have questions regarding these new measures, please reach out to a Walter | Haverfield attorney. We would be happy to assist you.