November 23, 2020

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

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

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

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

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

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

November 19, 2020 

With today’s passage of Ohio House Bill (“HB”) 404, the legislature officially has extended the effectiveness of the HB 197 provisions granting authority to public bodies to hold and attend meetings and conduct and attend hearings by means of teleconference, video conference, or any other similar electronic technology while remaining compliant with Ohio’s Open Meetings Act (“OMA”). The HB 197 language was set to sunset on December 1, 2020, but HB 404 extends the temporary virtual meeting authority until July 1, 2021. Once signed by Governor DeWine, the bill will become effective immediately.

In addition to the extension of the virtual meeting option, it also is important to note that the Director of the Ohio Department of Health’s November 16, 2020 “Revised Order to Limit and/or Prohibit Mass Gatherings in the State of Ohio with Exceptions,” which became effective on November 17, 2020, specifically provides that the 10-person mass gathering limitation does not apply to governmental meetings, including meetings required to be open to the public pursuant to RC 121.22. This means that boards of education are exempt from the mass gathering limitation and may carry out in-person meetings in excess of that limitation.

The legislation and Health Director’s order ensure that public bodies will continue to have options for meeting their OMA obligations at least through the end of June. In light of the recent surge in COVID-19 cases across the state, and the stay at home advisories that have been issued by some county boards of health, school boards should consider the feasibility of meeting in person and ensure necessary precautions if choosing to do so. Please feel free to contact any Walter | Haverfield attorney with questions regarding the status of OMA compliance and specific options for your board.

We are happy to help with any challenges your district may be experiencing. Please reach out to us here.

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

November 18, 2020

A New York federal district court recently dismissed a class action lawsuit alleging every school district in the country conspired to deny services to special education students during the COVID-19 pandemic.  The court concluded it lacked authority to consider claims about districts outside of New York, and even claims subject to review had to go through the local administrative process first.

In this much-talked-about complaint, a group of parents claimed that all school districts in the United States violated special education law by ending in-person instruction due to the pandemic.  They further contended the districts conspired to commit fraud by taking federal funds for special education services they never intended to provide.  Chief Judge Colleen McMahon dismissed this theory outright, noting the pandemic took the entire world by surprise, and conspiracy or fraud claims were completely implausible. The court further explained that remote learning does not constitute a change of placement under guidance from the federal Department of Education.  Systemic decisions affecting all students do not implicate special education regulations, the court emphasized, and parental consent, accordingly, is not required to implement virtual or remote learning.  The court allowed students to pursue individual complaints against their school districts, but noted that parents must follow their state’s administrative process in pursuing such claims.

Not only is this holding an important win for school districts, the decision also forecasts how other courts and agencies may analyze future special education claims arising from COVID-19 closures. Nevertheless, school administrators should keep in mind that special education students are entitled to a free appropriate public education (“FAPE”) regardless of whether districts determine to provide instruction to all students remotely or in-person. No coronavirus-related exemptions are available for deadlines prescribed by special education law, for example, and school districts must be careful to complete evaluations and annual reviews in a timely manner.  Although documenting FAPE is always important, a detailed record of specially-designed instruction and related services is even more critical during these uncertain times. Providing special education services might look different in 2020, but school districts remain obligated to offer FAPE and comply with all IEP requirements.

We are happy to help with any challenges your district may be experiencing.  Please reach out to us here.

Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mpearlmutter@walterhav.com or at 216-619-7861.

September 15, 2020 

On September 14, 2020, Governor DeWine signed Ohio Amended Substitute House Bill 606 (“H.B. 606”) affirming the Ohio Legislature’s extension of qualified civil immunity for COVID-19-related claims. H.B. 606 specifically expands Ohio qualified civil immunity provisions and precludes civil lawsuits for “injury, death, or loss to person or property” when the cause of action is based (in whole or in part) on exposure to, transmission or contraction of COVID-19, or a mutated form of the virus. The Legislature’s extension of this qualified civil immunity is specifically applicable to lawsuits against schools as well as state institutions of higher learning, governmental, religious, for-profit, and nonprofit entities.

Throughout H.B. 606, the Ohio Legislature made clear that it is aware of the unprecedented uncertainty surrounding COVID-19 as well as the numerous lawsuits already filed across the country alleging tort liability related to COVID-19. It also points out that business owners have not historically been required to keep members of the public from being exposed to airborne viruses, bacteria, and germs. The Ohio Legislature also reiterated through H.B. 606 that orders and recommendations from the Ohio Executive Branch, counties and local municipalities, boards of health and other agencies, do not create any new legal duties for purposes of tort liability. Such orders and recommendations are presumed to be irrelevant to the issue of the existence of a duty or to a breach of a duty and are inadmissible at trial to establish proof of a duty or breach of a duty in tort actions.

Like other immunity laws, H.B. 606 does not extend immunity to reckless conduct, intentional misconduct or to willful or wanton misconduct on the part of a school, state institution of higher learning, governmental, religious, for-profit or nonprofit entity related to COVID-19. Therefore, liability may still be found for claims related to conduct by a school (or other named entity) that is indifferent to the consequences, or disregards a substantial and unjustifiable risk causing an exposure, transmission or contraction of COVID-19 (or a mutation of the virus).

The qualified civil immunity created by H.B. 606, as applied to claims related to COVID-19, is retroactive to March 9, 2020, when Governor DeWine issued a state of emergency, and will continue through September 30, 2021. While this immunity provides substantial relief to Ohio schools and businesses, both are encouraged to continue to seek guidance from legal counsel on areas of potential liability as the COVID-19 pandemic continues to evolve, particularly as the immunity afforded under H.B. 606 is not absolute.

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 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.

September 4, 2020 

The Director of the Ohio Department of Health (“ODH”) issued an order on September 3, 2020 requiring reporting and notification regarding COVID-19 cases in K-12 schools (the “Order”). The Order requires all K-12 schools to maintain a reporting system for parents to report positive tests and/or cases of COVID-19 and encourages parents to begin notifying schools no later than 24 hours after receiving a COVID-19 diagnosis. The system can use existing resources, including an attendance line, school nurse line, or other attendance tracking system to meet this requirement so long as the selected system is monitored daily and allows for COVID-19 case reporting.

August 21, 2020 

On Tuesday, August 18, 2020, Governor Mike DeWine announced that all sports (both contact and non-contact) would be permitted to move forward this fall. The Order, issued by the Interim Director of the Ohio Department of Health (ODH) has been in effect since Wednesday, August 19, 2020, at 11:59 p.m. This development comes after a series of temporary and amended orders related to contact and non-contact sports, and is significantly more comprehensive and includes detailed guidance not only for athletes and coaching staff but also for venues and spectators.

Pursuant to the new Order, the ODH is setting forth the minimum mandatory standards that must be complied with by all who play, coach, officiate, or attend sports. A summary of each section of the Order is provided below.

All sports are permitted to practice and engage in competition. Subject to their full compliance with all provisions of the Order, K-12 schools are permitted to practice and engage in extracurricular athletic activities.

Governing authority rules. In addition to complying with the health mandates set forth in the Order, sports and sports participants must comply with any additional health rules for the prevention of COVID-19 from their governing authorities, which would include local departments of health and boards of education.

Social distancing requirements for sports. Social distancing requirements still include maintaining at least six-foot social distancing from other individuals, and not shaking hands or engaging in other team-building or social interaction of a close nature.

Enforcement. Teams, coaches, school officials, and sporting venues must comply with the requirements of the Order, and must appoint a compliance officer for each event. The Order can also be enforced by local authorities, and violations of the requirements could result in hefty fees, jail time or both.

Safety Requirements for Sports to Practice or Compete:

Coaching Staff and Player Safety Requirements

• Players, coaches, athletic trainers and officials must conduct daily symptom assessments before each practice or game.
• Anyone experiencing COVID-19 symptoms must stay home.
• Coaches must participate in COVID-19 education developed by ODH and educate players on how to prevent the spread of the illness.
• There must be no congregating before or after practices or games.
• Coaches, athletic trainers, volunteers, and officials must wear face coverings at all times, and players must wear face coverings when not on the field or court of play, with few exceptions.
• Coaches must promote good hand hygiene and respiratory etiquette. Flyers and signs are available here.
• When a coach is aware of athletes who are at an enhanced risk of developing serious complications from COVID-19, such as those with asthma, diabetes, or other health problems, the coach must adopt extra precautions to protect them. (This could include suggesting or requiring an additional consultation with the primary care physician in light of the Order and new information regarding associated risks.)

Spectator Safety Requirements

• All spectators must conduct daily symptom assessments and sit together, socially-distanced from other individuals/families/household groups.
• Each seating group must be separated from the next group by at least six feet in each direction. Seating groups must be assigned in staggered rows and sections to prevent contact between groups.
• Anyone experiencing COVID-19 symptoms must stay home.
• Spectators are required to wear face coverings at all times, unless actively eating or drinking concessions.
• There must be no congregating before or after practices or games.

Practice and Competition Safety Requirements

• Limit time spent on activities where players are in close proximity for extended periods of time. Six feet social distance must be maintained between individuals competing in sports except when necessary.
• Ensure that facilities have adequate space for social distancing for players, coaches, athletic trainers, officials, parents/guardians, and spectators off the field or court of play.
• Players, coaches, and officials are not to physically contact each other before or after practice or pregame and competitive play.
• Prior to tournaments, tournament organizers must notify the local health department.

Equipment Safety Requirements

• Equipment and personal items must have proper separation and should avoid being shared. If equipment must be shared, proper sanitation must be performed between users.
• Do not share water bottles or drinks.
• Do not share food.
• Do not share towels or facial coverings.

Venue Safety Requirements

• Each sports venue is required to have a written operations plan, prepared in consultation with local health departments.
• Time must be allotted between practice sessions to allow teams to exit fields/facilities prior to new teams arriving and for proper sanitizing for shared spaces and high-touch surfaces (benches, equipment, etc.).
• Facilities, teams, and clubs must ensure that facilities have adequate space for social distancing for players, coaches, athletic trainers, officials, parents/guardians, and spectators off the field or court of play.
• Locker rooms, weight training rooms, restrooms, and athletic training rooms must be cleaned and sanitized frequently. Individuals must maintain social distancing as much as possible while in these rooms. Face coverings must be worn at all times while in these rooms.
• When playing inside, ensure ventilation systems or fans operate properly. Increase circulation of outdoor air as much as possible, such as opening windows and doors unless doing so poses a safety or health risk.
• Concessions and retail vendors are to follow guidelines already in place for bars and restaurants.
• Make hand sanitizer available at convenient locations.
• Prioritize ticket distribution or event access to the sports participants’ family and household members.

Team Travel Safety Requirements

• Individuals traveling together by bus, etc., must wear a face covering and should social distance whenever possible. (Consider providing parents a release allowing them to transport athletes when possible.)
• Prior to departure, conduct a symptom and temperature check.
• Compete in your local area; i.e., no more than one hour’s worth of travel time in one direction.

Suspected and Confirmed Cases Safety Requirements

• Players, coaches, officials, or other individuals who had close contact or who had direct physical contact with an infected person must self-quarantine for 14 days following exposure.
• Any players, coaches, officials, or other individuals who become ill or develop symptoms must be immediately isolated and seek medical care, and should seek COVID-19 testing as soon as possible.
• Contact the local health department about suspected COVID-19 cases or exposure and to coordinate contact tracing.
• Districts must notify all athletes and parents/guardians associated with the affected team regarding a positive test, but should protect student confidentiality and allow the department of health to determine if and when the identity of a positive case should be disclosed.
• If the affected individual participated in competitive play, the District must notify all opponents played between the date of the positive test and two days prior to the onset of symptoms.
• An individual who tests positive for COVID-19, whether symptomatic or asymptomatic, shall not return to sports activities until a documented medical exam is performed clearing the individual.
• When a player, coach, or athletic trainer tests positive for COVID-19, team members who are not close contacts requiring self-quarantine, as determined by the local health department, should conduct: (1) a daily symptoms assessments and stay home if sick, and (2) an in-person temperature check before the start of each practice and game for 14 days as a precaution.

Limitation on spectators at sports venues. Spectators are permitted to attend sporting events, with exceptions and limitations as set forth in the Order.

• Spectator Pathway: Venues must develop a spectator pathway that allows for physical distancing as spectators move from parking, through box office lines, ticket scanning, and security screening to their seats.
• Signage and Education: Venues must communicate reminders of physical separation, face coverings, hygiene, and health symptoms through public announcements throughout the event. (Use of announcements over the PA system is recommended.)
• Facial Covering: Spectators must wear a cloth face covering at all times. Reinforce face covering requirements with signage and announcements throughout the venue/event.
• Cleaning and Hygiene: Venues should conduct frequent cleanings of high-traffic areas and allow adequate time between events in order to do so. It is recommended that every other sink in bathrooms is made available to the public in order to promote physical distance.
• Handling Sick/Symptomatic People: Venues must develop a plan for handling sick/symptomatic individuals. Any person with symptoms consistent with COVID-19 should be instructed to return home or be taken to a dedicated isolation area.
• Flexibility and Accountability: Sports facilities/venues must designate an individual responsible for the compliance with this Order.
• Concessions, if allowed, must follow Responsible Restart Ohio Guidance for Bars & Restaurants.
• The maximum number of individuals gathered in any indoor or outdoor entertainment venue shall be the lesser of 300 spectators or 15 percent of fixed seating capacity.

Variance. A sporting event may submit a plan that differs from the venue capacity requirements in this Order, in writing, to their local health department for review and also to the ODH. Verbal approvals are not sufficient. It is recommended that administrators not act to seek a variance without Board approval.

As always, Walter | Haverfield attorneys remain committed to keeping you updated on developing COVID-19 guidance and will continue to provide information and resources as guidance and recommendations evolve.

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

August 17, 2020 

The Ohio Department of Health (“ODH”) posted guidance to its website addressing the use of face shields including use in schools. In the ODH Face Shields FAQ, ODH addresses the use of face shields in lieu of masks or cloth face coverings. As addressed in our August 14, 2020 client alert, “Ohio School Mask Orders Update,” ODH highlights the Centers for Disease Control and Prevention (“CDC”) recommendation that face shields not be used as a substitute for masks due to the lack of evidence of face shield effectiveness in controlling the spray of respiratory droplets.

With regard to use of face shields in schools, ODH notes the limited exceptions set forth in the K-12 facial covering order released by the Interim Director of the Ohio Department of Health on August 13, 2020 (the “Order”), and provides that school-wide use of face shields instead of masks is not appropriate and does not meet the requirements of the Order. Instead, ODH states that a face shield is only appropriate in circumstances where an allowable exception to the Order applies. ODH’s guidance acknowledges that certain circumstances may require an alternative to a mask, and that in those instances if a face shield is used, it should be worn against the forehead with no gap, wrap around the sides of the face, and extend below the chin. Further, ODH notes that when a face shield is being used as an alternative to a face mask, social distancing of at least six feet should be maintained, as well as other preventive measures, such as frequent hand washing or use of hand sanitizer and increased cleaning of commonly touched surfaces.

As recommended in our August 14, 2020 client alert, district guidelines should address the topic of face shields and include a requirement that face shields only be utilized where an exception to the use of cloth facial coverings exists. If an exception to the face covering requirement is applicable, the student or employee instead could wear a face shield, if appropriate, based on the activity being engaged in by the individual. Documentation of the use of a face shield as an exception to the general facial coverings mandate should be maintained.

As always, Walter | Haverfield attorneys remain committed to keeping you updated on developing COVID-19 guidance and will continue to provide information and resources as guidance and recommendations evolve.

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

8/14/2020

On August 13, 2020, the Interim Director of the Ohio Department of Health (the “Director”) issued an order requiring use of facial coverings in K-12 schools (“Order”). The Order, which became effective on Friday, August 14, 2020, wields control over any conflicting provisions of the Director’s July 23 statewide mask order and will remain effective until the Governor-declared state of emergency no longer exists or the Director rescinds or modifies the Order. The Order requires that, with limited exception, all students, faculty, and staff in any child care setting, school building, or other location that provides care of education to any child in kindergarten through twelfth grade wear facial coverings. A facial covering is defined as any material that covers an individual’s nose, mouth and chin. Facial coverings must be worn at all times when:

1. In any indoor location, including but not limited to, classrooms, gymnasiums, offices, locker rooms, hallways, cafeterias, and/or locker bays;
2. Outdoors on school property and unable to consistently maintain a distance of at least six feet from individuals who are not members of their household;
3. Waiting for a school bus outdoors and unable to maintain a distance of at least six feet from individuals who are not members of their household; or
4. Riding a school bus.

The Director’s Order also sets forth very limited exceptions for circumstances in which the requirement to wear a facial covering does not apply, including when:

1. The individual has a medical condition, including respiratory conditions that restrict breathing, mental health conditions, or a disability that contraindicates the wearing of a facial covering;
2. The individual is communicating or seeking to communicate with someone who is hearing impaired or has another disability, where an accommodation is appropriate or necessary;
3. The individual actively is participating in outdoor recess and/or physical activity where students are able to maintain a social distance of at least six feet or athletic practice, scrimmage, or competition that is permitted under a separate Department of Health Order;
4. The individual is seated and actively consuming food or beverage;
5. Where students and staff can maintain distancing of at least six feet and removal of the facial covering is necessary for instructional purposes, instruction in foreign language, English language for non-native speakers, and other subjects where wearing a facial covering would prohibit participation in normal classroom activities, such as playing an instrument;
6. Students are able to maintain a distance of at least six feet, and a mask break is deemed necessary by the educator supervising the educational setting;
7. The individual is alone in an enclosed space, such as an office; or
8. When an established sincerely-held religious requirement exists that does not permit a facial covering.

The exemptions set forth in the new Director’s Order are noticeably more expansive than the exemptions articulated by the Ohio Children’s Hospital Association’s and the Ohio Chapter, American Academy of Pediatrics’ joint letter, as articulated by Governor DeWine on August 4, 2020, but more narrowly tailored than those previously set forth in the statewide mask mandate. Additionally, the Director’s Order expands the individuals to which the mandate applies.  Districts should maintain documentation of any exception that is granted, including the reason for granting the exception.

While the mandate does not specifically address use of face shields, it is likely that many face shields will not meet the definition of “facial covering” as set forth in the Order, as many do not cover the chin. In such circumstances, face shields are only appropriate in instances where an exception from the face covering requirements apply. Additionally, the Centers for Disease Control and Prevention (“CDC”) currently do not recommend the use of face shields as a substitute for masks. As a result, we recommend that district guidelines address the topic of face shields and include a requirement that face shields only be utilized where an exception to the standard use of facial coverings exists. If an exception to the face covering requirement is applicable, the student or employee instead could wear a face shield, if appropriate, based on the activity being engaged in by the individual. Documentation of the use of a face shield, as an exception to the general facial coverings mandate, also should be maintained.

Further, on August 10, 2020, Governor DeWine signed Executive Order 2020-34-D, impacting preschool facial covering requirements. This Executive Order, in effect for 120 days, adopted revised Ohio regulations that specify the following for preschools:

• All preschool administrators, staff members/employees must wear a face covering while indoors, unless not medically appropriate;
• Face coverings, expressly include for preschool settings, cloth masks or plastic face shields that cover the individual’s nose and mouth (preschool staff can wear face shields instead of masks);
• Preschool students are excluded from the “school-age” definition and are not required to wear facial coverings.

Given the new Orders, districts will need to review existing policies, procedures and forms regarding use of face coverings in schools in order to ensure that they remain compliant with the new directives and properly address all necessary locally-developed standards for use of facial coverings in schools.

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

August 4, 2020 

On August 1, 2020, the Ohio Department of Health (ODH) issued a third Order related to contact sports, which extends the expiration date of its second amended Order. Notably, unlike previous orders that had a set expiration date, the third Order will remain in effect until either the State of Emergency declared by the Governor ends or the Order is rescinded or revised by the Director of the Ohio Department of Health.

In the latest Order, contact training and practice may continue for all sports.

Competitive games and tournaments are permitted for non-contact sports, subject to the previously existing guidelines relating to symptom assessment, distancing, avoiding shared equipment where possible, and mask wearing.

For contact sports, no practices or open gyms with other teams or groups or inter-team (school vs. school) scrimmages or competitive games are permitted unless all involved teams comply with Section 10 of the Order (see below for more information).

In the Order, ODH defines contact sports as one of the following: football, basketball, rugby, field hockey, soccer, lacrosse, wrestling, hockey, boxing, futsal and martial arts with opponents.

In addition to the existing guidelines, Section 10 provides stringent requirements, which include:

• Denial of participation for anyone displaying symptoms within 72 hours of the event
• Acknowledgment of receipt of materials explaining Covid-19 precautions
• Receipt of a negative test before traveling to the competition
• Testing of all participating athletes and team staff members no more than 72 hours prior to the competition
• Denial of participation for all individuals or teams with a member testing positive and with strict adherence to quarantine guidelines
• Daily temperature checks
• Repeated testing at 4 days and every 2 thereafter for tournaments of a longer nature
• Separate team areas for pre-competition practice
• Daily certification to the local health department that protocols are being followed
• Maintenance of a contact log for all participants, and provision of the log to local and state departments of health upon request
• Denial of access to spectators
• Communication to and coordination with the local health department upon learning of a positive case

School districts will need to conduct careful planning and oversight as well as develop and maintain all required documents to meet the state’s requirements. Furthermore, consultation with counsel is advised prior to entering into any agreement or acknowledgement requested by the Ohio High School Athletic Association (OHSAA).

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.

July 17, 2020 

To assist school districts in developing remote learning plans for the 2020-2021 school year, the Ohio Department of Education recently released guidance addressing student attendance during remote learning activities.

At the outset, ODE urges school districts to maintain student and parent contact information, learn about families’ digital access, and build collaboration and trust. Additional guiding principles include prioritizing health and safety, emphasizing student engagement, using data to drive decision-making, leveraging community partnerships, and supporting the whole child.

Remote learning plans, as outlined in HB 164, must include “how the school will document participation in learning opportunities.” ODE offers the following considerations for tracking attendance:

• Hourly Increments: Attendance must be converted and reported in hourly increments. However, it is not necessary to take attendance hourly, or even daily. Instead, districts can opt to monitor attendance weekly (or using another regular schedule) to provide flexibility for families.
• Remote Learning: Attendance hours will vary by the type of remote-learning activity.  Synchronous teacher-led remote learning can equate to hour-for-hour in-person instruction, but asynchronous self-directed remote learning may require analyzing “evidence of participation.”  Evidence of participation can include daily logins, student-teacher interactions, and assignment completion. Using assignment completion as evidence of participation means determining how many hours an assignment should take a typical student to complete, and counting that time as attendance hours. For example, a long-term project may be expected to take eight hours over two weeks, and will count for eight hours of student attendance, even though some may finish in more or less time. Daily or weekly tasks (e.g. journaling) can also be logged according to how much time students are expected to spend on the activity (i.e. 15 minutes per day equals 1.25 hours per week). Although the default is to assume attendance, if there’s no evidence of student exposure, engagement or participation, that child should be marked as absent for the hours assigned to that remote-learning task.
• In-School Learning: Attendance for in-school activities should be taken the same way as normal when students are in-school. ODE cautions that remote learning should not be used to make up in-school absences, unless a student is in quarantine or in-school learning is discretionary.

ODE also encourages districts to update their attendance and absenteeism policies to include additional excusals for student absences related to remote learning and/or the pandemic. Examples of additional reasons to excuse student absences include: temporary internet outages, unexpected technical difficulties, and “student absence due to COVID-19.” Districts should also consider updating the definition of medically-excused absence to allow additional days excused without a doctor’s note and/or to extend the timeline for receiving such excuses for quarantined students or those experiencing symptoms. ODE emphasizes that district policies must avoid penalizing students who contract COVID-19.

Moreover, ODE encourages flexibility in record-keeping and reporting via student information systems. Although expected student calendar hours must typically be recorded as either “in attendance,” “excused absence,” or “unexcused absence” for specific days, schools may adopt procedures to ease record-keeping and data entry. A student’s absence for a three-hour activity, for example, can be recorded for one day instead of split across the five days assigned to that remote learning task.

Finally, some students with IEPs or Section 504 Plans may need COVID-19 attendance accommodations depending on their individual circumstances.  Please reach out to your district’s counsel if you have questions about attendance accommodations or any other aspect of this guidance.

The full guidance released by ODE is available here.

Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mpearlmutter@walterhav.com or at 216-619-7861.

Kathy 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.