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Ohio Department of Health Updates Covid Reporting Expectations


March 12, 2022

Megan GreulichMarch 12, 2022

On March 10, 2022, the Director of the Ohio Department of Health (ODH) officially took action to rescind the September 3, 2020 Director’s Order Requiring Reporting and Notification Regarding Covid-19 Cases in  K-12 Schools effective at 12:01 p.m. on Thursday, March 10, 2022. As a result, schools now only must report positive results for tests performed by the school. More specifically, schools no longer are required to do the following:

  • Maintain a Covid reporting system for parents to report positive Covid-19 cases.
  • Have a designated district Covid-19 coordinator.
  • Notify parents of positive Covid-19 cases among staff, students, or coaches.
  • Report positive cases of Covid-19 to the local health department, unless the school tests the student for Covid-19 and the result is positive.

Schools are encouraged to continue to work with local departments of health to monitor community spread and continue to emphasize mitigation strategies to reduce transmission of infectious diseases. Schools also are encouraged to consider layered prevention strategies, including masking and physical distancing if rates of community spread begin to increase in their area. Although the reporting standards have been rescinded, the quarantine and isolation measures set forth in the Mask to Stay, Test to Play protocols remain in effect. Walter | Haverfield attorneys are available should you have questions about the legal implications of these changes or implementation of other Covid-19 mitigation strategies in your District.

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

CDC Updates Transportation Masking Requirements


February 26, 2022

Megan GreulichFebruary 26, 2022

Effective Friday, February 25, 2022, the Centers for Disease Control and Prevention (“CDC”) will no longer require that masks be worn on buses or vans operated by public or private schools. This change is intended to align with the CDC’s updated guidance, which no longer recommends universal masking in K-12 settings in areas with low or medium COVID-19 community levels. The CDC is effecting this change through exercise of its enforcement discretion, so while the CDC transportation Mask Order remains in effect, its requirements will no longer be enforced with regard to schools.

As a result, while still permitted to do so, boards of education are no longer required to implement or enforce mask-wearing on school district transportation. Districts wishing to discontinue current masking requirements should work with Board counsel to review and revise any District policies or plans that include transportation masking requirements, and ensure that any changes to current requirements are properly communicated to all community stakeholders. As always, please feel free to reach out if we can be of assistance as you consider revisions to your existing COVID-related plans.

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

New Contact Tracing Implications for School Districts


January 27, 2022

January 27, 2022 

On January 26, 2022, the Ohio Department of Health issued a memo to local health departments and school superintendents on new requirements, effective immediately, for contact tracing and case investigation relating to COVID-19. The memo recommends that local health departments shift from universal contact tracing to a cluster or outbreak-based model. With this shift, the requirements for school districts have changed:

  • Schools may now discontinue universal contact tracing, however schools are expected to assist their local health departments with contact tracing, case investigation and exposure notification as related to outbreak or clusters in school as determined by the local health department;
  • School case reporting will now be expected weekly. Starting on February 4, 2022, schools should report positive student and staff cases to their local health departments by the close of business on Fridays.

Schools should still continue to follow the Ohio Department of Health’s “Mask to Stay, Test to Play” protocol.

This shift will decrease the burdens on school districts with respect to contract tracing and could also impact student quarantines.

The Ohio Department of Health’s memo and guidance from the Ohio Department of Education can be found here and here.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274. 

Ohio Federal Court Issues Preliminary Ruling Denying Challenge to District’s Mask Mandate

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September 16, 2021

Christine CosslerSeptember 16, 2021 

With students returning to in-person learning under the continuing backdrop of the COVID-19 pandemic, mask mandates have become a contentious issue as lawsuits are being filed across the country, including locally. With Ohio’s state of emergency lifted in June 2021, and limited rulings from the courts on these issues, decisions related to masking have been left to local school districts as part of their local authority.

On September 13, 2021, the Northern District of Ohio issued a preliminary ruling in P.M. v. Mayfield City School District Board of Education, denying a challenge to a mask mandate implemented by the Mayfield City School District Board of Education. This decision provides insight as to how similar lawsuits against mask mandates enacted in Ohio’s school districts could be handled.

In the P.M., case, a student, P.M, through her parent, filed for a temporary restraining order (TRO) against Mayfield City School District Board of Education’s mask mandate, which was implemented this school year for all students, teachers, and faculty. The TRO sought by P.M. would effectively require the district to immediately drop the mask mandate. P.M. alleged various constitutional violations in connection with the district’s mask policy, and also argued  that the policy causes immediate and irreparable health risks to students, staff, and the community at large.

The mask mandate aligned with recommendations from the Ohio Department of Education, Ohio Department of Health, Centers for Disease Control and Prevention, and Ohio Governor Mike DeWine.

The court denied the TRO, finding that P.M failed as to all four parts of the TRO test: 1) whether the plaintiff has a strong likelihood of success on the merits of the case, 2) whether the plaintiff would suffer irreparable injury in the absence of the TRO, 3) whether the TRO would cause substantial harm to others and 4) whether the public interest would be served by the issuance of the TRO. Notably, the court held that to issue the TRO would potentially cause “substantial harm to the district’s students, teachers, and faculty through community spread of COVID-19, which could potentially cause serious illness and death.” Precluding the mask mandate would also pose an increased risk of quarantine and long-term disruption.

The court also found that P.M was not likely to succeed on the merits of her constitutional claims because wearing a mask does not impede her from attending school or otherwise violate the 14th Amendment of the Constitution.

Additionally, the court found that P.M. did not show any evidence of personal or imminent harm from the district’s mask policy, particularly given the policy’s exemption options.

It is important to note that P.M.’s TRO request was an initial “emergency” phase of a larger lawsuit filed against the district regarding its mask mandate. Thus, while she lost the initial emergency request to ban the mask policy, her underlying challenge to the mask policy remains pending with the court. However, the court’s conclusion, as part of its rationale for denying the TRO request, that plaintiff did not show a substantial likelihood of success on the merits serves as an indication of how the case might ultimately be decided. It remains to be seen what impact this decision will have on other mask policy cases against Ohio’s school districts.

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.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274

U.S. Department of Education Releases “Roadmap” to Return to In-Person Learning


August 3, 2021

Christina PeerAugust 3, 2021

On August 2, 2021, the U.S. Department of Education (Department) released the “Return to School Roadmap,” a resource to students, educators, school districts and parents in preparation for the return to in-person learning for the 2021-2022 school year. As schools begin to reopen nationwide, the roadmap is intended to serve as a guide outlining strategies suggested by the Centers for Disease Control and Prevention’s (CDC) for K-12 schools. It also lays out actionable steps for schools to take in order to both minimize virus transmission and to help sustain long-term, in-person learning.

  • In addition to the roadmap, the Department has already issued several supportive resources to help guide both educators and students this fall:
    • Prioritize the health and safety of students, staff, and educators
    • Build school communities and support students’ social, emotional, and mental health
    • Accelerate academic achievement
  • fact sheet on the Return to School Roadmap, reviewing the three “Landmark” priorities listed below.
  • The White House also released a fact sheet highlighting the Administration’s efforts to safely reopen schools and support the nation’s students in conjunction with the launch of the roadmap.

The Department has announced that it will soon provide additional resources to students, educators, school districts and parents as part of the Return to School Roadmap. These additional resources include:

  • Providing implementation tools for schools, educators, and parents to address the areas of health and safety, student well-being, and academics in the following areas: supporting schools in their efforts to address lost instructional and extracurricular time, providing information on how American Rescue Plan funds can be used to expand access to mental health supports for students and educators, and providing additional academic supports.
  • Updating Volumes 1 and 2 of the Department of Education’s COVID-19 handbooks to reflect the recently updated CDC K-12 guidance.

With the 2021-2022 school year about to begin, school districts continue to face difficult decisions and challenges related to COVID-19. Districts are encouraged to work closely with their local departments of health and, if necessary, legal counsel as they navigate the latest COVID-19 guidance.

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.

 

Guidance Issued Regarding Districts’ Obligations to Students Suffering from “Long COVID” Under the IDEA and Section 504


August 2, 2021

Christina PeerAugust 2, 2021

On July 26, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) published a joint resource to provide information about school districts’ obligations to students for whom COVID is a disability, also referred to as “long COVID.”  Per the Centers for Disease Control and Prevention (CDC), there are numerous post-COVID conditions that can create new, returning, or ongoing health problems that people sometimes experience more than four weeks after a COVID-19 infection.  Some symptoms that can occur in children include:

  • Tiredness or fatigue
  • Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
  • Headache
  • Changes in smell or taste
  • Dizziness on standing (lightheadedness)
  • Fast-beating or pounding heart (also known as heart palpitations)
  • Symptoms that get worse after physical or mental activities
  • Chest or stomach pain
  • Difficulty breathing or shortness of breath
  • Cough
  • Joint or muscle pain
  • Mood changes
  • Fever
  • Pins-and-needles feeling
  • Diarrhea
  • Sleep problems
  • Changes in period cycles
  • Multi-organ effects or autoimmune conditions
  • Rash

Long COVID can be a disability under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 (Section 504).  Depending on the severity and impact of long COVID symptoms, and the necessity of specially designed instruction, students suffering with long COVID could also be eligible under the Individuals with Disabilities Education Improvement Act (IDEA).  In determining whether to evaluate a student under Section 504 or IDEA, districts should consider the following:

  • Students can qualify for Section 504 protections even if their impairment does not substantially limit learning, as long as that impairment limits some other major life activity.
  • To qualify under the IDEA, however, the impairment must adversely affect the student’s educational performance and require specially-designed instruction.

If presented with a student suffering from long COVID symptoms, districts should:

  • Determine if a disability is suspected under Section 504 or the IDEA.
  • If a disability is suspected, notify the parent that the district suspects a disability and would like to evaluate the student to determine eligibility.
  • Obtain parental consent for the evaluation (or document the parent’s decision not to consent to the evaluation).
  • If consent is obtained, conduct the evaluation and make an eligibility decision (using the applicable Section 504 or IDEA eligibility criteria).
  • If the student is eligible, create and offer a Section 504 plan or IEP.

If you have any questions, please reach out to us. We are happy to help with any challenges your district may be experiencing.

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.

HB 110 Changes to Blended Learning


July 30, 2021

Megan GreulichJuly 30, 2021

One of the many changes associated with Ohio’s Biennial Budget, House Bill (HB) 110, includes revisions to the statutes addressing implementation of a Blended Learning Model. It’s important to be aware of these changes, as they are likely to impact district plans for implementation of blended learning models during the 2021-22 school year.

HB 110 revised the definition of “blended learning” as set forth in Ohio Revised Code (ORC) Section 3301.079(J) to require that the combination of instructional delivery under a Blended Learning Model include time primarily in a supervised physical location away from home. While a combination of time spent via delivery of in-person and online instruction still is required, the HB 110 change removes flexibility from districts to allow for implementation of a Blended Learning Model that includes a majority of the time spent in online learning. While the addition of one word to the definition may seem minor, this change creates additional limitations on online learning at a time when districts already are struggling with limited options for continuation of online learning into the 2021-22 school year. In addition to this limitation, the definition of blended learning also has been revised to include a definition of “online learning,” which the statute defines to mean students working primarily from their residences on assignments delivered via an internet- or other computer-based instructional method.

HB 110 also revises ORC Section 3302.41 to remove the exemption from minimum school year or day requirements set forth in ORC Sections 3313.48 and 3313.481 that formerly applied under implementation of Blended Learning. Under the new language, schools opting to implement a Blended Learning Model now will be required to maintain an annual instructional calendar of not less than 910 hours.

In addition to the changes set forth in HB 110, the Ohio Department of Education (ODE) has released guidance regarding implementation of blended learning and online schools. Districts were required to submit Blended Learning Declarations by July 1, 2021, and the ODE Online & Blended Learning Considerations for 2021-22 School Year FAQ notes that if a district has submitted a Blended Learning Declaration and decides not to use a Blended Learning Model, the district should rescind its Blended Learning Declaration prior to August 31, 2021. As a result, districts that have submitted a Blended Learning Declaration should consider whether the HB 110 changes will result in a change of plans that might necessitate rescission of that Blended Learning Declaration and/or changes to district plans for implementation of a Blended Learning Model.

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

CDC and State Department of Health Issue New COVID Guidance for Ohio School Districts


July 28, 2021

Christina Peer

July 28, 2021 

On July 27, 2021, the Centers for Disease Control and Prevention (“CDC”) issued this update recommending “universal indoor masking for all teachers, staff, students and visitors to K-12 schools, regardless of vaccinations status.” The update comes one day after the Ohio Department of Health (“ODH”) released this COVID-19 guidance for Ohio K-12 Schools (“ODH Guidance”). The CDC’s Guidance is in line with the latest recommendation from the American Academy of Pediatrics which, on July 19, 2021, recommended universal masking in schools for students over age 2, unless contraindicated by medical or developmental conditions.

The ODH Guidance, which has been updated for the 2021-2022 school year, leads with the stated goal to “keep students back in school, in-person five days a week.”  It also addresses three primary measures to help prevent the spread of COVID-19: vaccination (for all eligible individuals for whom vaccination is not medically contraindicated); wearing masks; and additional measures including proper ventilation, physical distancing, good hygiene practices, etc.

Promoting Vaccination

The ODH Guidance encourages all eligible individuals to obtain the COVID-19 vaccine, citing vaccination as “the leading public health prevention strategy to end the COVID-19 pandemic.” The ODH Guidance suggests the following strategies for school districts to promote vaccination:

  • Encourage teachers, staff, students and their families to get vaccinated and share information regarding COVID-19 vaccine locations
  • Consider partnering with vaccine providers to host vaccination clinics on-site before, during or after school or in the summer leading up to the return to school
  • Consider hosting information sessions or pop-up vaccination clinics in partnership with vaccine providers
  • Provide flexibility with respect to excused absences for students who are absent to get vaccinated or who might have side effects from the vaccine

Masking in Schools

While the ODH  Guidance “strongly recommends that those who are unvaccinated wear masks while in school,” it does not mandate facial coverings in schools. Rather, this decision is being left to each individual school district. The ODH Guidance recommends masks in indoor settings. But for outdoor settings, it states masks are not necessary, including when participating in outdoor play, recess and physical education activities. The ODH Guidance also notes that exceptions should be made for individuals who cannot wear a mask because of a developmental delay or disability and for individuals for whom wearing a mask would create a workplace health/safety risk.

In making the decision of whether facial coverings will be required, districts must be aware of Ohio H.B. 244, which was signed by Governor DeWine on July 14, 2021 and becomes effective on October 13, 2021.  Per this new state law, public school districts are prohibited from (1) requiring receipt of a vaccine that has not been granted full FDA approval and (2) “discriminating” based on whether an individual has received a vaccine that has not received full FDA approval. Under H.B. 244, “discrimination” includes requiring individuals who have not been vaccinated to engage in or refrain from engaging in activities or precautions that differ from those applicable to vaccinated individuals. In other words, H.B. 244 prohibits school districts from requiring that only unvaccinated individuals wear masks. Importantly, as noted above, H.B. 244 is not effective until October 13th, and once the COVID-19 vaccines receive full FDA approval, the provisions of H.B. 244 will not apply.

Masking on Transportation

Although the ODH Guidance leaves the decision regarding masks in school to individual school districts, districts do not have this flexibility with respect to transportation. On January 29, 2021, the CDC issued this order requiring masks for all individuals, regardless of vaccination status, on public transportation.  This includes school busses and all students/staff members traveling by school bus. The ODH Guidance includes a reference to the CDC Order and its applicability to school busses.

Improving Ventilation

The ODH Guidance goes into significant detail about improving ventilation, calling it a “critical intervention that can help slow the spread of the virus.” Districts are encouraged to consider using ESSER funds to upgrade air quality systems in school buildings. Additional guidance from the U.S. Department of Education regarding the use of ESSER funds for this purpose is available here.

Additional Mitigation Strategies

The ODH Guidance includes information on additional mitigation strategies, particularly physical distancing between individuals. The ODH Guidance recommends:

  • Maintaining at least 3 feet of physical distance between students in classrooms;
    • When this is not possible, it is particularly important to layer other prevention strategies such as masking, testing, cohorting, improved ventilation, regular cleaning and hand washing, etc.
  • Maximizing physical distancing as much as possible during mealtimes in food service lines and indoor eating areas
  • Limiting non-essential visitors and volunteers, particularly in areas where there is moderate to high COVID-19 community transmission

The ODH Guidance also addresses symptom assessment, contracting, isolation and quarantine.  Specifically, the ODH Guidance recommends:

  • Educating teachers, staff and families about COVID-19 symptoms and when they or their children should stay home and when they can return to school
  • Monitoring daily attendance patterns of staff/students for trends
  • Continuing contact tracing and notification of close contacts of COVID-19 exposure as soon as possible after a positive test is reported

The ODH Guidance also provides modified quarantine procedures. Specifically, the ODH Guidance states: “unvaccinated students who have been exposed to COVID-19 in school settings can continue to attend school and participate in sports and extra-curricular activities if both students were wearing masks consistently and correctly, and other layered prevention strategies including appropriate distancing were in place.”  The ODH Guidance goes on to state that “fully vaccinated students do not have to quarantine,” but it does not indicate how this distinction can be squared with the requirements of H.B. 244. While not explicitly stated in the ODH Guidance, it appears that, if both students were not wearing masks or if other mitigation strategies were not in place, quarantine would be required. School districts should seek guidance from their local departments of health regarding contact tracing, isolation and quarantine requirements.

With the 2021-2022 school year about to begin, school districts continue to face difficult decisions and challenges related to COVID-19.  Districts are encouraged to work closely with their local departments of health and, if necessary, legal counsel as they navigate the latest COVID-19 guidance.

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.

HB 244 and COVID Considerations for the 2021 School Year


July 21, 2021

Megan Greulich

July 21, 2021

On July 14, 2021, Governor DeWine signed Ohio House Bill (HB) 244, which prohibits public school districts and state institutions of higher education from requiring an individual to receive a vaccine that has not been granted full United States Food and Drug Administration (FDA) approval. Because existing COVID-19 vaccines are currently operating under emergency FDA approval, they fall within this category.

In addition to the prohibition against requiring such vaccinations, the new language also prohibits discrimination against an individual who has not received a vaccine that does not have full FDA approval. This prohibition includes requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine.

HB 244 becomes effective on October 13, 2021, nearly two months after many schools return in the fall, meaning that the restrictions will not be applicable to schools until that date. It also is important to note that the restrictions are tied directly to vaccinations that do not have full FDA approval, and as a result, if COVID vaccines are granted full FDA approval, the restrictions no longer will apply for purposes of COVID planning.

Ultimately, the implementation of HB 244 is likely to reduce school districts’ flexibility in implementing the guidance and recommendations from health and other agencies, instead requiring more of an all or nothing approach to implementation of COVID precautions. With the return to school quickly approaching, both the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP) have released updated guidance, with continued revisions to guidance from other agencies anticipated.

CDC Guidance

While many of the recommendations are familiar, including the emphasis on the importance of returning to in-person learning and implementing a layered approach to COVID precautions, the July 9 updates to the CDC K-12 guidance focuses in part on the importance of monitoring vaccination status and rates of transmission within each community. The guidance further recommends that where a school plans to reduce existing precautions due to high vaccination rates and low transmission rates, precautions should be reduced one at a time, with the impact of such reduction monitored prior to implementing subsequent precaution reductions.

Additionally, the revised guidance provides for differing standards in certain circumstances depending on vaccination status. Due to the passage of HB 244, beginning in mid-October, Ohio school districts will need to make difficult decisions about how to address this guidance in order to avoid differentiating between individuals who have and who have not received a COVID vaccine. As a result, in order to remain in compliance with HB 244, school districts should work with board counsel to ensure that any differing restrictions are not based on vaccination status.

AAP Guidance

While the AAP guidance released on July 19 also emphasizes the importance of in-person learning, the organization takes a more stringent approach to recommendations for schools, particularly with regard to masking recommendations. In doing so, the AAP specifically notes that its recommendations are based in part on the fact that students under the age of 12 are not yet eligible for vaccination, and it notes the challenges associated with monitoring and verifying vaccination status of individuals who currently are eligible to receive the vaccine. As a result, the AAP recommends universal masking in schools at this time. More specifically, the AAP recommends that all students older than two years and all school staff wear face masks at school except where a medical or developmental condition prohibits mask use. In addition to masking recommendations, AAP also urges school districts to continue to take a multi-layered approach to COVID precautions and work closely with state and local health authorities to coordinate their efforts.

Ohio Department of Health (ODH) Guidance

While ODH has yet to release revised guidance for the 2021-2022 school year, it appears that such guidance is imminent and expected to be released within the next few weeks. In addition to forthcoming state-level guidance, local health departments also have begun releasing guidance to address HB 244 and revised agency recommendations. As a result, districts should remain vigilant in keeping up with the changing standards and recommendations as we continue to move toward students’ return to school.

United States Department of Education (USDOE) Guidance

In addition to the health agency guidance, it also bears noting that USDOE has acknowledged the CDC’s recently updated guidance and is in the process of updating the 2021 ED Covid-19 Handbook, Volume 2 accordingly to address any necessary changes in light of the CDC’s revised guidance for K-12 schools.

As always, we will continue to keep you updated on any legal and/or guidance-related developments. In the meantime, please reach out to any W|H education attorney here if you have questions about your district’s plans for the 2021-2022 school year.

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.

 

Ohio H.B. 110 Allows for Creation of Online Learning Schools


July 12, 2021

Christina PeerJuly 12, 2021

On July 1, 2021, Governor DeWine signed H.B. 110, Ohio’s 2022-2023 biennial budget, into law, which allows local, city, exempted village and joint vocational school districts (“school districts”) to request to use an “online learning model” through the creation of an “online learning school.” Online learning is defined as a scenario where students work primarily from home on assignments delivered via an internet or computer-based instructional model. An online learning school, operated by a school district, is a new concept that differs from Remote Learning Plans utilized during the 2020-2021 school year. An online learning school also differs from a blended learning model or an alternative school (information on these learning models is available here).

While an online learning school could function in a similar manner to the remote learning plan used by school districts during the 2020-2021 school year, districts should carefully consider the requirements for an online learning school. First and foremost, an online learning school will be recognized by the Ohio Department of Education as a separate school that is being operated by the local, city, exempted village or joint vocational school district. The online learning school will have its own IRN number, and students must be assigned to the online learning school for purposes of EMIS reporting and school funding. Additionally, to operate an online learning school, a local, city, exempted village or joint vocational school district must:

  • Provide students enrolled in the online learning school with a computer that is equipped with a filtering device (or software) that protects against internet access to materials that are obscene or harmful to juveniles at no cost;
  • Provide internet access to all students enrolled in the online learning school at no cost;
  • Provide a comprehensive orientation to students and their parents/guardians prior to enrollment in the online learning school;
  • Implement a learning management system that tracks the time students participate in online learning activities; and
  • Document all student learning activities that are completed offline with participation record checks and approved by the teacher of record.

Furthermore, the state board of education has been tasked with revising the operating standards that are applicable to school districts to include standards for online learning. These standards must include:

  • Student-to-teacher ratio of no more than 1:125 per online learning classroom;
  • The ability of all students, at any grade level, to earn credits and advance to the next grade upon demonstrating mastery or knowledge through competency-based learning models;
  • Requiting that online learning schools have an annual instructional calendar of no less than 910 hours;
  • Provisions for:
    • The licensing of teachers, administrators and other professionals;
    • Effective instructional materials and equipment; and
    • Supervision of each school, including regulations for the preparation of all necessary records and reports, admission of pupils, etc.

While H.B. 110 provides districts with a mechanism to continue providing online instruction, districts should carefully consider all of the obligations and guidelines before opening and operating an online school. Districts must also consider staffing issues and collective bargaining obligations. Finally, districts should determine how the needs of students with disabilities who enroll in the online learning school will be met. Any school district that wishes to develop an online learning school must complete the School District Online Learning School Notification, which can be downloaded here, and submit it to this email address by August 1, 2021.

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.

Navigating ESSER Funds in an Ever-Changing COVID-19 Landscape

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June 2, 2021

James McWeeny

June 2, 2021

Although the pandemic is seemingly subsiding in the U.S., public school districts in Ohio still face the challenge of how to use multiple forms of pandemic-related government funding. Notably, the task of navigating the permissible uses of COVID-19 funds, and the procedures school districts must follow with respect to them, pose a number of complex legal issues.

The Funds

By way of background, the federal government has made three main sources of funds available to state educational agencies, which local school districts may in turn apply for and use for certain enumerated purposes.  These federal funds include:

  • The Elementary and Secondary School Emergency Relief Fund I (“ESSER I”), as authorized by Section 18003 of Division B of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, enacted on March 27, 2020 and available for obligation by school districts through September 30, 2021. The general purpose of ESSER I funds is to provide funding for the prevention, preparation for, and response to the COVID-19 pandemic;
  • The Elementary and Secondary School Emergency Relief Fund II (“ESSER II”), as authorized by the Coronavirus Response and Relief Supplemental Appropriations (“CRRSA”) Act, enacted on December 27, 2020 and available for obligation by school districts through September 30, 2022. The general purpose of ESSER II funds is to provide funding to address learning loss, preparation for the reopening of schools, as well as projects to improve the air quality in school buildings; and
  • The American Rescue Plan Elementary and Secondary School Emergency Relief Fund (“ARP ESSER”), as authorized by the American Rescue Plan (“ARP”) Act, enacted on March 11, 2021 and available for obligation by school districts through September 30, 2023. The general purpose of ARP ESSER funds is to provide funding to address learning loss as well as the reopening and operation of schools in a way that maintains the health and safety of students, educators, and staff.

Permissible Uses of Funds

According to the U.S. Department of Education (“U.S. DOE”), a school district is permitted to use the various funds for a “wide range of activities.”  However, there are parameters. With respect to ESSER funds, the primary question most schools have asked is, “What kinds of programs, projects, and/or purchases can our district use the various funds for?”  Importantly, each of the funds can be used for the same allowable purposes. However, for ARP ESSER funds, a school district must do the following:

  • Reserve at least twenty percent (20%) of its total ARP ESSER award to address learning loss through the implementation of evidence-based interventions;
  • Ensure that such interventions respond to the students’ academic, social, and emotional needs; and
  • Address the disproportionate impact of COVID-19 on underrepresented student groups, including students from low-income families, students of color, children with disabilities, English language learners, migratory students, students experiencing homelessness, and youth in foster care.

Permissible uses of ESSER funds include, but are not limited to, the following:

  • Any activities authorized by the Elementary and Secondary Education Act , the Individuals with Disabilities Education Act , the Adult Education and Family Literacy Act , the Perkins Career and Technical Education Act ; and the McKinney-Vento Homeless Assistance Act;
  • Repairing and improving school facilities to reduce the risk of virus transmission and exposure to environmental health hazards, which includes remodeling, alterations, and renovations necessary to prevent, prepare for, and respond to COVID-19. However, the U.S. DOE discourages the use of funds for new construction projects, if the use of these funds for new construction limits a school district’s ability to support other essential needs or initiatives;
  • Activities to improve indoor air quality, such as upgrades to a school facility’s HVAC system as well as related projects that promote social distancing and safe in-person instruction;
  • Activities to address the unique needs of children from low-income families, children with disabilities, English language learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth;
  • The purchase of personal protective equipment, cleaning and sanitizing materials, portable air purifiers, as well as emergency supplies necessary to adequately respond to COVID-19;
  • Providing COVID-19 testing and vaccinations to district educators, staff, and eligible students;
  • Implementing evidence-based interventions to support students who have suffered lost instructional time due to COVID-19;
  • Activities to support students’ social, emotional, mental health, and academic needs, including the hiring of support personnel such as nurses, counselors, and social workers to effectuate these goals;
  • The purchase of educational technology, including hardware, software, connectivity, assistive technology, and adaptive equipment, for students that aids in regular and substantive educational interaction between students and their classroom instructors, including students from low-income families and children with disabilities;
  • To provide support for summer learning and enrichment programs; and
  • Other activities that are necessary to maintain operation of and continuity of services, including continuing to employ existing or hiring new school staff.

Other Legal Issues

School districts must also be cognizant of various state and federal laws when using ESSER funds.  For instance, if schools use funds for renovation, repair, improvement, and/or construction projects, they must comply with both state and federal procurement laws. As such, schools must follow the dictates of Ohio Revised Code 3313.46 as well as federal procurement laws, including but not limited to, those identified in the Uniform Grant Guidance. Schools must also comply with federal prevailing wage laws for all contracts over $2,000 for the construction, alteration, or repair of public buildings and must comply with the Americans with Disabilities Act as well as state and local design standards. Further, schools must track and separately account for each of the ESSER funds as well as describe, identify, and maintain in their records the COVID-19 “connection” for which the various funds are used.

Moreover, districts should be mindful of the timelines associated with any projects under these grant funds to ensure they are consistent with the timelines associated with the ESSER funds.  Likewise, school districts should keep in mind that certain activities may be subject to approval by the Ohio Department of Education.

If you have questions regarding the allowable use of funds under ESSER I, ESSER II, or ARP ESSER, please contact us here.

James McWeeney is a partner at Walter | Haverfield who focuses his practice on education lawlabor and employment and litigation. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274. 

Governor DeWine Requires Schools to Continue Social Distancing and Mask Wearing


May 18, 2021

Christina PeerMay 18, 2021

On May 12, 2021, Governor DeWine announced public health orders such as capacity limits, social distancing and the mask mandate will come to an end, with the exception of those for nursing homes and assisted living facilities.  The next day, the Centers for Disease Control and Prevention (CDC) announced that those who have been fully vaccinated may forgo wearing masks both indoors and outdoors, except in crowded indoor settings like buses, planes, airports, and hospitals. The announcement did not make any specific mention of school districts, which left districts in a state of uncertainty.

Over the weekend, both Governor DeWine and the CDC released updated information for school districts.  The CDC is urging schools nationwide to maintain COVID-19 health guidelines through the end of the current school year. Governor DeWine echoed the CDC’s stance in a letter sent to all Ohio school districts. In that letter, Governor DeWine said he is ordering that schools continue to follow health protocols which include wearing masks and distancing from others.  Governor DeWine’s letter stated that the decision was based on the limited number of students vaccinated and the need to “maintain consistency and model safe behavior for Ohio’s students.”

Please reach out to us here if you have questions or need clarification. We will happily assist you.