School Districts

CDC Updates Transportation Masking Requirements

A: 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.

A: 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.

New Contact Tracing Implications for School Districts

A: 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.

A: 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.

A: 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.

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

Navigating ESSER 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

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.

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.

Governor DeWine Requires Schools to Continue Social Distancing and Mask Wearing

A: 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.

A: 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.”

Blended Learning: What you need to know before the July 1 deadline

A: With districts still scrambling to determine how to continue online learning for the 2021-2022 school year and beyond, many are considering implementation of blended learning. Under Ohio law, “blended learning” means the delivery of instruction in a combination of time in a supervised physical location away from home and online delivery whereby the student has some element of control over time, place, path or pave of learning. If your district is considering this option, a completed Blended Learning Declaration form must be submitted to ODE by July 1.

In addition to submission of the declaration form by the listed deadline, boards also are required to adopt policies and procedures addressing the following topics:

Means of personalization of student centered learning models to meet each student’s needs.
The evaluation and review of the quality of online curriculum delivered to students.
Assessment of each participating student’s progress through the curriculum. Students shall be permitted to advance through each level of the curriculum based on demonstrated competency/mastery of the material.
The assignment of a sufficient number of teachers to ensure a student has an appropriate level of interaction to meet the student’s personal learning goals. Each participating student shall be assigned to at least one teacher of record. A school or classroom that implements blended learning cannot be required to have more than one teacher for every one hundred twenty-five students.
The method by which each participating student will have access to the digital learning tools necessary to access the online or digital content.
The means by which each school shall use a filtering device or install filtering software that protects against internet access to materials that are obscene or harmful to juveniles on each computer provided to or made available to students for instructional use. The school shall provide such device or software at no cost to any student who uses a device obtained from a source other than the school.
The means by which the school will ensure that teachers have appropriate training in the pedagogy of the effective delivery of on-line or digital instruction.

Districts have significant leeway in developing locally-adopted policies and procedures to address the listed topics, and may want to consider how existing procedures can be incorporated into blended learning policies and procedures to meet the required standards. The policies and procedures are not required to be submitted to ODE, but ODE recommends that Boards act to adopt them by the July 1 deadline. While the statute and rule do not include a deadline by which the policies and procedures must be adopted, it is important to ensure that the requisite language is in place prior to implementation of a blended learning model.

Additionally, while the required policies and procedures do not reference students with disabilities, districts must be cognizant of their obligation to provide these students access to blended learning on the same basis as their non-disabled peers. Districts will need to consider how to make online learning opportunities accessible to students with disabilities through the use of accommodations. Districts also will need to determine the best way to provide the specially designed instruction required by students’ individualized education plans.

ODE Releases Guidance on Remote Learning for the 2021-22 School Year

A: On April 1, 2021, the Ohio Department of Education (“ODE”) released much-anticipated guidance regarding remote learning options for the 2021-22 school year. While legislative action to address continuation of remote learning options for the upcoming school year remains uncertain, ODE’s guidance outlines the options that exist under current law for districts wishing to continue remote learning options for students. These options will remain once the Remote Learning Plan option, which was created to address challenges associated with the Covid-19 pandemic during the 2020-21 school year, ends.

A: ODE’s guidance – available here – addresses four options that currently exist under Ohio law, including (1) alternative schools, (2) blended learning, (3) credit flexibility, and (4) the innovation education pilot program. Each option carries with it different procedural requirements for implementation, and districts should be aware that the remote learning options available under these programs will not provide the same level of flexibility as exists under the current temporary remote learning plans. ODE’s guidance includes a comparison chart detailing the general information about eligibility, required components, and impacts of each option, but districts are encouraged to work with legal counsel to determine which option is most appropriate to accomplish district goals.

A: Authority for establishment of alternative schools is set forth under Ohio Revised Code Section (RC) 3313.533, which requires adoption of a board resolution addressing required components set forth in the statute. While alternative schools are an option for providing remote learning, they are structured to serve a limited student population, including students who are on suspension, having truancy problems, experiencing academic failure, have a history of class disruption, exhibiting other academic or behavioral problems, or who have been discharged or released from the custody of the Department of Youth Services. While this option would allow for remote learning for students falling within these groups, it does not provide a remote learning option that can be made available to all district students.

Authority for establishment of blended learning is set forth under RC 3302.41 and Ohio Administrative Code Rule (OAC) 3301-35-03, which require submission of a blended learning declaration to ODE and adoption of policies and procedures as outlined in the Rule, which must be submitted with the blended learning declaration. By definition, blended learning requires a combination of school-based learning and remote online learning, and as a result, does not provide an all-remote option. There is, however, no limitation on the amount of remote versus school-based learning that must occur under a blended learning model.

More information on blended learning and access to the blended learning declaration form are available here. This year’s submission deadline for blended learning declarations is July 1, 2021. As a result, districts wishing to move forward with this option will need to develop required policies and procedures to submit to ODE with the declaration form by that date.

Credit flexibility is addressed under RC 3313.603 and OAC 3301-35-01. Districts already should have policies and procedures in place addressing credit flexibility, which serves as an alternative option for earning graduation credit through personalized plans for each student. While this provides a remote learning option, it does not provide the same one-size-fits-all approach permitted by temporary remote learning plans. Credit flexibility requires development of customized plans for each participating student and monitoring of the student’s progress on his/her plan. Additionally, credit flexibility cannot be the sole instructional delivery method for a student.

There also are a number of other important considerations associated with implementation of credit flexibility. For example, potential impacts on athletic eligibility requirements and district obligations related to the use of credit flexibility by students with disabilities should be considered in plan development. ODE provides a number of helpful guidance documents regarding credit flexibility, which are available here, in addition to its web conference series on the topic, which can be accessed here.

Authority for implementation of an innovation education pilot program is set forth under RC 3302.07 and OAC 3301-46-01, which allows a district to submit an application to ODE proposing an innovation pilot program. The Rule provides that “‘innovation means a new, experimental or disruptive educational approach that is developed based on an identified need and seeks continuous improvement in student achievement or student growth,” and lists the specific items that must be included in a district’s application, including, among others, exemptions from specific statutory provisions or rules that are necessary to carry out the program. It is important to note that this option requires the written consent of any applicable teachers’ union to be submitted to ODE along with the district’s application.

ODE has the authority to approve or deny innovation pilot program applications, and this option must be renewed each school year. Additionally, there are limitations on the statutory exemptions that can be proposed through innovation pilot program applications. These limitations are addressed in ODE’s comparison chart.

CDC Urges Schools to Open for In-Person Learning Safely and Soon

A: Stressing the importance of in-person learning, The Centers for Disease Control and Prevention (CDC) recently released guidance to open and operate K-12 schools in ways that mitigate the spread of COVID-19 (COVID).

A: Employ the following mitigation strategies to reduce the spread of COVID in schools: A universal mask mandate, physical distancing, handwashing and respiratory etiquette, cleaning and maintaining healthy facilities, and contact tracing in combination with isolation and quarantine. Among these strategies, the CDC recommends prioritizing mask wearing and physical distancing.

A: Assess the level of community transmission – Since the risk of COVID in schools is dependent on the level of community transmission, the CDC recommends the use of two measures to determine the risk of transmission: (1) the total number of new cases per 100,000 persons in the past 7 days, and (2) the percentage of positive COVID test results during the last 7 days. The transmission level for any given location will change over time and should be reassessed weekly for situational awareness and to continuously inform planning.

Recommended learning modes (in-person, hybrid, virtual) vary depending on the level of community transmission and strict adherence to mitigation. The following is an operational plan for schools that emphasizes mitigation at all levels of community transmission:

K–12 schools should be the last settings to close after all other mitigation measures in the community have been employed, and the first to reopen when they can do so safely. Schools should be prioritized for reopening and remaining open for in-person instruction over nonessential businesses and activities.
In-person instruction should be prioritized over extracurricular activities, including sports and school events, to minimize the risk of transmission in schools and protect in-person learning.
Lower incidence of COVID among younger students (for example, elementary school students) suggests that they are likely to have less risk of in-school transmission due to in-person learning than older students (middle school and high school).
Students whose families are at an increased risk for severe illness or those who live with people at increased risk should be given the option of virtual instruction, regardless of the mode of learning offered.
Schools are encouraged to use “cohorting” or “podding” of students, especially in communities with moderate to high levels of transmission, to facilitate testing and contact tracing, and to minimize transmission across pods.
Schools that serve students who are at risk for learning loss during virtual instruction should be prioritized to reopen and provide the needed resources to implement mitigation.
When implementing phased mitigation in hybrid learning modes, schools should consider prioritizing in-person instruction for students with disabilities who may require special education and related services to be directly provided in school environments, as well as other students who may benefit from receiving essential instruction in a school setting.

A: Regardless of a community’s transmission level, schools should refer students, teachers and staff members who exhibit COVID symptoms, or who were exposed to someone with a confirmed or suspected case of COVID, to a diagnostic testing site.

Schools may perform COVID testing on school property if school-based healthcare professionals are trained in specimen collection, obtain a Clinical Laboratory Improvement Amendments (CLIA) certificate of waiver, and have proper personal protective equipment (PPE).

Schools may also elect to screen students, teachers and staff members to identify infected individuals without symptoms who may be contagious in an effort to prevent further transmission. When determining which individuals should be selected for screening testing, the CDC recommends prioritizing teachers and staff over students given the higher risk of severe disease outcomes among adults. When determining which students should be selected for screening testing, the CDC recommends prioritizing high school students, then middle school students, then elementary school students.

Testing should be offered on a voluntary basis. Consent from a parent or legal guardian (for minor students) or from the individual (adult students, teachers, staff) is required for school-based testing.

Every COVID testing site is required to report all testing performed to state or local health officials as mandated by the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

A: Access to vaccines should not be considered a condition for reopening schools – The CDC says vaccinating teachers and school staff should be considered just one layer of mitigation and protection for staff and students. Even after they are vaccinated, schools need to continue mitigation measures for the foreseeable future, including mask wearing and physical distancing.

A: While not mandatory, the guidance from the CDC should be reviewed and considered by districts. Districts already providing in-person instruction (whether “all in” or “hybrid”) should re-assess their mitigation efforts and decision-making frameworks to determine their alignment with the new guidance. Districts currently providing only remote instruction should review this guidance and determine if a return to in-person instruction (either “all in” or “hybrid”) is feasible. Districts contemplating a change in their model of instruction should be cognizant of the implications for both staff and students and be prepared to respond to these issues.

Ohio Releases Guidance for School Districts on Extended Learning Plans for Students

A: The Ohio Department of Education released this FAQ bulletin to help public school districts learn more about Governor DeWine’s announcement from his press conference on February 9, 2021, to create extended learning plans for students by April 1, 2021.

A: DeWine recently called on school districts in a press conference to formulate and submit a specific plan for all students to make up for lost time due to the pandemic. His proposed ideas include extending the current school year, extending the school day, and/or beginning the new year early. Summer programs, tutoring, or remote options are also considerations. DeWine also encouraged parents to be communicative about their kids’ current level of learning and has asked them to work in partnership with schools in brainstorming how to catch up.

A: ODE clarifies in its FAQ that planning for extended learning is simply a request. However, it is likely this request will appear in upcoming proposed legislation as a requirement.

The ODE is working to develop an optional template schools may employ when formulating their plan. Elements of the template will include:

Impacted Students – How will schools and districts identify which students have been most impacted by the pandemic in terms of their learning progress (with a focus on the most vulnerable student populations)?
Needs – How will schools and districts identify the needs of those students?
Resources and Budget – What resources are available to address those needs? Generally, what is the budget for the plan?
Approaches – What approaches can best be deployed to address those needs? (This may include approaches such as ending the school year later than scheduled, beginning the new year early, extending the school day, summer programs, tutoring and remote options.)
Partnerships – Which local and regional partners (such as educational service centers, Information Technology Centers, libraries, museums, after-school programs or civic organizations) can schools and districts engage in supporting student needs?
Alignment – How can this plan reinforce and align to other district or school plans, including plans for Student Wellness and Success Funds, improvement plans or graduation plans?

A: Each district may prepare a plan according to the unique needs of its student population. To fund these plans, the ODE recommends using the federal Elementary and Secondary School Emergency Relief Funds. Temporary federal funds may also become available in the near future to assist with the costs involved in creation and implementation of plans. The ODE said it will release additional information in the coming weeks to provide further clarification, including how plans should be submitted.

A: At this juncture, there are more questions than answers about extended learning plans. It is clear that, based on the different learning models that have been used throughout the state this year, a “one-size-fits-all” approach will not be appropriate. Districts must make decisions based on their specific circumstances and those of their students. And, while DeWine has indicated that funding will be available, districts will also have to navigate contractual issues with staff.

FAQ: School Districts and the Coronavirus Vaccine

Generally, yes. In December of 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance indicating employers do not run afoul of the Americans with Disabilities Act (“ADA”) by requiring employees to be vaccinated.[1] Specifically, the ADA sharply limits the medical inquiries and examinations that an employer can require when an individual is already employed.[2] The EEOC, however, determined that the vaccine itself is not a medical examination and by requiring an employee to be vaccinated, the employer does not implicate the ADA’s restrictions on medical examinations.

However, various exceptions are likely to arise. As explained below, administering the vaccine (or contracting with a third party for administration) may lead to pre-immunization medical questions and disability-related inquiries, permissible only when job-related or consistent with a business necessity.[3] Further, employees who have disability-related or religion-based objections to the vaccine may be entitled to reasonable accommodations.[4] If your school district opts to mandate vaccines for all employees, it will be important to consider individuals with disabilities and religious objections on a case-by-case basis. Additionally, before implementing any vaccine requirements, your board should ensure it has: (1) considered its collective bargaining agreements; (2) adopted the relevant policies; (3) developed appropriate guidelines; and (4) consulted with counsel as needed. School districts may also wish to consult with their insurance providers regarding liability concerns, if any.

[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K

[2] 29 CFR §1630.14(c)

[3] Id.

[4] 29 CFR § 1630.9(a); 29 CFR § 1605.2(b)

Yes, simply asking for proof is permitted. However, any follow-up questions about why the employee did not receive a vaccine may elicit information about an employee’s disability.[5] A district may only ask such questions if it determines that such inquiries are job-related and consistent with business necessity.[6] To meet this standard, the district must have a reasonable belief, based on objective evidence, that either: (1) declining the vaccine will impair the employee’s ability to perform essential job functions; or (2) the employee will pose a direct threat to others by exposing them to the virus.[7] This may be a fairly difficult standard to meet in the school setting, particularly for buildings that have been open for instruction during the pandemic. Even if the staff member poses a direct threat, however, the district would need to consider possible reasonable accommodations to reduce the risk of such a threat.[8]

In short, it is unlikely that unvaccinated employees will be considered to be a direct threat or unable to perform their job-related responsibilities. Accordingly, school district administrators should avoid asking follow-up questions about why an employee did not receive a vaccine. As an aside, administrators should not require antibody testing (in place of vaccine proof), as the EEOC considers antibody testing impermissible in making decisions about returning to the workplace.[9]

[5] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, A.7.

[6] 29 CFR § 1630.14(c)

[7] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#5

[8] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K.5

[9] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, A.7.

Generally, no. Although individuals with disabilities who pose a direct threat to others are not entitled to continued employment,[10] this standard is fairly difficult to meet. Specifically, in deciding whether the unvaccinated employee poses a direct threat, the district would need to consider the: (1) duration of the risk; (2) nature and severity of potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm.[11] Moreover, the district would also need to determine it could provide no reasonable accommodation to mitigate the above risk or that providing such an accommodation would be an undue hardship.[12]

Many, if not most, school districts have been open to some form of in-person instruction for students at some time during the coronavirus pandemic. Accordingly, it would be challenging to show that an employee now poses a direct threat which cannot be mitigated by having the employee work remotely or some other reasonable accommodation aimed at mitigating transmission to others. However, if a particular staff member works with medically-fragile students, for example, the above analysis may be relevant to a district’s determination of direct threat. If a reasonable accommodation is not possible, the employee may be excluded from the workplace, but termination may still not be appropriate if the employee can take leave or work out other alternative work arrangements that would mitigate potential transmission to others.[13]

[10] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws K.7.

[11] 29 CFR § 1630.15(b)(2).

[12] 29 CFR §1630.2(r).

[13] Id., 29 CFR § 1630.15(d).

Generally, no. Federal law requires employers to provide reasonable accommodations for religious belief or practice, unless doing so would pose an undue hardship.[14] Undue hardship under Title VII includes anything over and above a minimal cost.[15] Depending on your district’s expected expenses in accommodating employees who refuse vaccines for religious reasons, you may consider whether the undue hardship standard would be met. Notably, district administrators should assume that an employee’s request for religious accommodations is sincere.[16] If you have an objective basis for questioning either the religious nature or sincerity of the belief, you may request additional supporting information.[17]

[14] 29 CFR § 1605.2 (b).

[15] 29 CFR § 1605.2 (e).

[16] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws K.6

[17] Id.

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

A: 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.

A: 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.

A: Licenses and certificates issued by ODE, which expire on or before April 1, 2021, will remain valid until July 1, 2021.

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 the 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.

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.

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.

Ohio Legislature Passes Bill Extending Qualified Civil Immunity for COVID-Related Claims

A: 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.

A: 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.

A: 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.

A: 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).

A: 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.

Ohio Department of Health Director Signs K-12 COVID-19 Reporting and Notification Order

A: 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.

A: 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.

A: Within 24 hours of becoming aware of a student, teacher, staff member, or coach who has tested positive or been diagnosed with COVID-19, schools are required to report the existence of cases in writing:

To the parents or guardians of all students who share classroom space or have participated in a school activity during the student, teacher, staff member, or coach’s COVID-19 infectious period.
To all parents or guardians of students at the school building notifying them of a positive test result, which can be provided via email or posted on the district’s website and can be consolidated if necessary.
To the school district’s local department of health.

A: Notification templates school districts may use are available under the “Schools” tab on this page. The Order encourages school districts to use website dashboards to inform the school community of the number of COVID-19 cases and the number of students and staff isolated or quarantined, if this information is known.

A: In addition to notification and reporting requirements, school districts also are required to name a COVID-19 coordinator to facilitate case information reporting and provide the individual’s name and contact information to the school’s local department of health. Upon request, school districts also are required to provide the local department of health a copy of their reopening or pandemic operation plan.

Ohio Department of Health Releases Order Allowing Sports to Move Forward with Stipulations

A: 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.

A: 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.

A: 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.

A: 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. 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.

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 that 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.)

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.

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 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.

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.

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.

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.

A: 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.

A: 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.

Ohio School Mask Orders Update and Face Shield Guidance

A: 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.

A: Facial coverings must be worn at all times when:

In any indoor location, including but not limited to, classrooms, gymnasiums, offices, locker rooms, hallways, cafeterias, and/or locker bays;
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;
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
Riding a school bus.

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

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;
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;
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;
The individual is seated and actively consuming food or beverage;
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;
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;
The individual is alone in an enclosed space, such as an office; or
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.

A: School-wide use of face shields instead of masks is not appropriate and does not meet the state’s requirements. The Centers for Disease Control and Prevention (“CDC”) 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, 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.

Read more about the recent face shield guidance here.

A: 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.

A: 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.

Ohio Department of Health Extends Contact Sports Order, Clarifies Definition of Contact Sports

A: 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.

A: 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.

A: 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).

A: 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.

A: 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

A: 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).

Student Attendance During Remote Learning for the 2020-2021 School Year

A: To assist school districts in developing remote learning plans for the 2020-2021 school year, the Ohio Department of Education (ODE) released guidance addressing student attendance during remote learning activities. The full guidance released by ODE is available here.

A: 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.

A: 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.

A: ODE 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.

A: The 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.

Re-Open & Re-Start Guidance for the 2020-2021 School Year

A: On July 2, 2020, the Ohio Department of Health (ODH) and the Ohio Department of Education (ODE) released new guidance regarding the re-opening of schools for the 2020-2021 school year. This guidance, which is titled “COVID-19 Health and Prevention Guidance for Ohio K-12 Schools,” provides five basic guidelines for school districts to follow when developing their re-opening plans. While the Guidance does include some mandatory directives, in most areas, decisions regarding how the Guidance will be implemented is left to school districts. Each of the five guidelines raises various issues for school districts with respect to policy and operations.

A: The Guidance suggests that all students (and their caregivers), staff, and volunteers (if permitted at all) conduct daily health checks prior to going to school. This check should include a temperature check and assessing for other symptoms. Anyone with symptoms should stay home. The Guidance states that schools may choose to take temperatures of students and staff members as they enter the building. Districts will need to consider whether it is feasible to conduct a temperature check for all students as they enter or whether they will rely on parents to conduct these checks at home. Districts will need to have the necessary equipment, such as thermometers, to assess symptoms even if most checks are occurring at home. Districts will also need to consider how (or if) they will conduct follow-up with families regarding a student’s absence when a student is called off due to illness.

A: Considerations include:

Maintaining an area that is separate from the nurse’s office so that other students who require medical attention or medication are not exposed to the symptomatic individual
- If this is not possible, establishing an area in the nurse’s office where the symptomatic individual can be isolated (consider curtains that can be drawn around a cot, etc.)
- Having others who need medical assistance report to a separate area if a symptomatic individual is in the nurse’s office (even if the area is curtained off)
Maintaining a supply of masks to be provided to any individual exhibiting symptoms (unless medically contraindicated)
Ensuring that the employee monitoring anyone showing symptoms has appropriate PPE
Developing a protocol for cleaning any areas where a symptomatic individual waited prior to leaving the building and areas the individual accessed during the day

A: Yes, districts should compile appropriate referrals and document that the referral has been made.

In the case of a positive COVID-19 individual, or a suspected positive COVID-19 individual in a school building, the school is to notify the local department of health for further guidance, including assistance with notifying individuals who may need to quarantine. FERPA contains an exception that allows the disclosure of personally identifiable information in the event of a health/safety emergency. Districts should develop a protocol for notifications and update policies accordingly.

Districts should put plans in place to address situations where a number of students and/or staff members must self-quarantine based on possible exposure (regardless of where the exposure occurred). In other words, students who must self-quarantine must still have appropriate opportunities for continued learning. Districts will also need to determine how to handle staff absences due to illness or the need to self-quarantine after possible exposure.

Districts are also urged to reconsider any policies that penalize students or staff members for absences or that reward perfect attendance.

A: Handwashing is an effective way to prevent the spread of COVID-19 for one simple reason: it kills the virus.

Students, staff, and volunteers should practice frequent handwashing for at least twenty (20) seconds, before and after eating, as well as after using the restroom. Schools must provide opportunities throughout the day for handwashing.

Each school building will need to determine the logistics of frequent handwashing while maintaining social distancing. Schools will have to plan and coordinate the use of restrooms by students, staff, and volunteers. Schools can consider the use of portable handwashing stations in order to allow for frequent handwashing while practicing social distancing. Particularly for young students, teachers will need to instruct on appropriate handwashing technique. Staff members will also need to supervise young students to ensure that proper handwashing is actually taking place. It is possible that building schedules will need to be altered in order to accommodate increased handwashing.

To supplement handwashing, schools must provide hand sanitizer (60-95% alcohol based) in high traffic areas, including entrances to buildings and classrooms. Also, schools must instruct students and staff to use hand sanitizer.

Students, staff, and volunteers should avoid touching their mouths, noses, and eyes because the virus easily enters the body through membranes, and schools should consider providing signage and instruction to help reinforce these guidelines for preventing the spread of COVID-19.

A: Disinfecting surfaces reduces the spread of disease, including COVID-19. Schools should clean surfaces frequently and consider developing a disinfection plan. In addition, the following guidelines are also recommended for school environments:

Use EPA-approved disinfectants against COVID-19, while being mindful of each district’s policies that address cleaning products and the use of certain chemicals in the school setting.
Pay attention to high touch areas and shared materials.
Provide sanitation wipes and/or disinfectants in each room and common space.
Ensure sanitation wipes and disinfectants are labeled as for use against COVID-19.
Minimize sharing of supplies and materials as much as possible.
If supplies must be shared, sanitize between each user.

When determining how to disinfect the school environment and shared surfaces, school teams are encouraged to include custodial staff in these discussions. Additionally, protocols should be developed by each teacher to limit the use of shared materials and to disinfect any materials that are shared between student uses. Additional considerations include:

The potential need for investment in multiple sets of the same materials in order to allow time for disinfection between uses
Protocols for shared spaces such as the gym, library, music room, art room, etc.
Protocols for lunch and recess

A: This task should always be performed by a staff member and could lead to the need for additional staff members to perform custodial functions, or for teachers and paraprofessionals to take a larger role in cleaning work spaces and materials. Districts should be aware of potential labor/management issues that increased cleaning protocols could create.

A: Keeping a distance of six feet or more between people has been exceptionally effective against the spread of COVID-19 by minimizing the chance of coming into contact with respiratory droplets. This is particularly important in areas of loud speaking, singing, athletics or instrument playing.

The Guidance states: “School staff should try when possible to maintain 6-foot social distance among students, staff, and volunteers in all school environments, including classrooms, hallways, restrooms, cafeteria, playground, drop-off and pick-up locations, and school buses. Where social distancing is difficult, face coverings are even more essential.”

Notably, while the six feet of distance between people is strongly recommended, it is not mandated by the guidance. Instead, six feet of distance should be maintained “when possible.” This leaves school districts to determine how to balance the need for six feet of distance with the need to return students to school for in-person instruction. Districts should plan to maintain six feet of distance in all situations (and environments) where it is possible to do so. This will almost certainly result in the need to use classroom space effectively and potentially for smaller class sizes. The Guidance notes that where maintaining six feet of distance is not possible, face coverings are even more critical. In making this statement, the Guidance acknowledges that it will not always be possible to maintain six feet of distance in the school setting; but that every effort should be made to do so whenever possible. When six feet is not possible, three feet is considered an acceptable minimum by the American Academy of Pediatrics if face coverings are utilized and individuals are asymptomatic.

A: In addition to using signs and floor markings as social distance reminders, it’s important to rethink group situations and be creative with the use of space and time.

Avoid using shared materials or shared spaces (lockers, cubbies, etc.) and reduce mixing student groups.
Review schedules and group transitions to minimize groupings or movement.
Group students in ways that minimize movement between rooms and in common spaces.
Consider having teachers move from class to class instead of students.
Food could be delivered and consumed in classrooms instead of using the cafeteria format.
Analyze each classroom for square footage and determine the maximum number of students and staff who can occupy the rooms at any given time while remaining within determined health guidelines.
Consider strategic use of non-classroom spaces for instructional purposes, such as cafeterias, auditoriums, gymnasiums, and outdoor areas.
Consider split-scheduling, alternating days, weekend or evening uses, or staggering start/end times.

A: A key area of concern, from a social distancing perspective, will be school transportation. The Guidance states that school officials “should endeavor to do the best they can to keep social distancing on buses” and tacitly acknowledges that it is unlikely that six feet of distance can be maintained on buses. That being said, schools can consider the following:

Assigning students to seats
- Have members of the same household sit together
- Have members of the same neighborhood sit together
Requiring the use of masks on buses for all students is strongly recommended by the Guidance.

Districts will also need to determine how buses will be cleaned/sanitized between runs.

A: Districts will also need to determine how school visitors will be handled. Options include:

Prohibiting visitors (except in the case of an emergency)
Allowing visitors, but requiring a health screening prior to entering the building
Allowing visitors, requiring a health screening prior to entering the building and limiting visitor access to certain areas of the building

Districts will need to determine how to handle events such as open houses, parent/teacher conferences, kindergarten orientation and IEP/Section 504 meetings. Virtual options exist, but will require advance planning. Additionally, districts should be prepared to make exceptions for parents who do not have access to technology.

A: As already indicated, face coverings are critical in preventing person-to-person virus spread, especially when community spread is elevated and social distancing is not possible.

The Guidance requires all school staff and volunteers to wear cloth/fabric face coverings/masks that cover an individual’s nose, mouth, and chin, “unless it is unsafe to do so or where doing so would significantly interfere with the learning process.” If a staff member meets an allowable exception and is excused from this requirement, the District is required to provide the local health officials with written justification, upon request. Exceptions expressly include:

Facial coverings in the school setting are prohibited by law or regulation;
Facial coverings are in violation of documented industry standards;
Facial coverings are not advisable for health reasons;
Facial coverings are in violation of the school’s documented safety policies;
Facial coverings are not required when the staff works alone in an assigned work area; or
There is a functional (practical) reason for a staff member or volunteer to not to wear a facial covering in the workplace.

A: When masks would hinder the learning process, present a health or safety issue, or for those individuals who have difficulty wearing cloth masks, the Guidance recommends “face shields that wrap around the face and extend below the chin.” These may be most appropriate when interaction and communication with students would be negatively impacted by limited face visibility, such as with students with disabilities, English language learners, during foreign language instruction, or possibly during certain extracurricular activities.

Unlike staff requirements, districts will have discretion regarding student face coverings. The Guidance recommends that students in 3^rd grade and up wear face masks unless they are unable to do so for a health or developmental reason. But the Guidance notes that the majority of experts opine that children as young as kindergarten can wear masks with consideration of developmental and physical circumstances. Districts will need to develop a policy for face coverings for all students and share the policy with families prior to the start of the school year. If face coverings are required, schools should determine how they will address students who do not bring a face covering to school, students whose face coverings become soiled or unwearable while at school and students who refuse to wear a face covering.

These guidelines leave districts with many decisions regarding facial barriers, including face masks and face shields. Districts must develop policies and procedures in accordance with the Guidance for staff, as well as students, and visitors that address areas of ambiguity, including:

examples and/or lists of permissible exceptions(such as general positions that have industry standard conflicts), what the district will consider unsafe for mask wearing, and how the district will define “significant interference with the learning process”
parameters for staff regarding permissible times/conditions to take a break from wearing a mask
under what circumstances students and visitors will need to wear masks (in classrooms, lunch, special events, hallways, meetings, threshold if contingent on local community spread, etc.)
how parental refusal and/or student discipline related to such requirements will be handled, and applicable procedures to challenge such
specific procedure for the analysis of individual circumstances and necessary accommodations, while developing steps to avoid discrimination, bullying, or retaliation against individuals who are unable to wear masks
requirements as applicable to recess, gym, transportation, student drop off/ pick up, etc.
available options for individuals who cannot meet established expectations.

A: Reopening will be no small task, as districts will need to consider the ever-evolving medical science, individual needs, community safety perceptions, and potential labor/management issues. It is strongly recommended that districts collaborate with all stakeholders, including parents and relevant union representatives on such policies and procedures. Districts should also review current policies and update any policies that are not in alignment with the procedures that will be utilized for the 2020-2021 school year.

Ohio H.B. 164: Emergency Legislation for the Reopening of Schools

A: Ohio Governor Mike DeWine signed Ohio House Bill 164 (H.B. 164), also known as the Ohio Student Religious Liberties Act of 2019. The bill allows public school students to pray, attend religious gatherings and include their faith-based beliefs in their schoolwork. Furthermore, it addresses a wide range of school issues as districts prepare to reopen for the 2020-2021 school year in light of the pandemic.

Payment for School Districts with Decreases in Utility Tangible Personal Property Value

H.B. 164 requires the Ohio Department of Education (ODE) to make a payment, for fiscal year 2020 and 2021, to each school district with more than a 10% decrease in the taxable value of utility tangible personal property (TPP) subject to taxation, which has at least one power plant located within its territory.

To qualify for the fiscal year 2020 payment, a district must have experienced this decrease between tax years 2017 and 2019, tax years 2018 and 2019, or tax years 2017 and 2018. To qualify for the fiscal year 2021 payment, a district must have experienced this decrease between tax years 2017 and 2020 or tax years 2019 and 2020.

Tax Commissioner’s Eligibility Determination and Payment Formulas

Under H.B. 164, the Tax Commissioner must determine which school districts are eligible for this payment no later than ten days after the bill’s effective date (for the fiscal year 2020 payment) or May 15, 2021 (for the fiscal year 2021 payment) and must further certify certain specific information to the ODE regarding tax valuations for each school district that is eligible for the payment. Additionally, H.B. 164 establishes detailed and precise formulas by which the ODE calculates a school district’s payment under these provisions.

Deadline for Payment

H.B. 164 requires the ODE to make fiscal year 2020 payments no later than 14 days after the bill’s effective date and to make fiscal year 2021 payments between June 1, 2021, and June 30, 2021.

Funding Adjustment for Districts with Increases in Utility TPP Value

Likewise, the bill specifies that, if a school district experienced an increase in the taxable value of all utility TPP subject to taxation by the district between tax years 2016 and 2017 and, as a result, had funds deducted from its state education aid, the ODE must credit the deducted amount to the district no later than ten days after the bill’s effective date.

Additional Payment for School Districts for Fiscal Year 2020

H.B. 164 requires the ODE to make an additional payment to each school district that receives, for fiscal year 2020, a combined amount of foundation funding after state budget reductions in accordance with the Governor’s order and funding from the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act that is less than 94% of its foundation funding for fiscal year 2020 as calculated before state budget reductions.

The bill also explains that the amount of this payment is equal to the difference between (1) 94% of the district’s foundation funding for fiscal year 2020 as calculated before state budget reductions and (2) the combined amount of foundation funding after state budget reductions in accordance with the Governor’s order and funding from the federal CARES Act.

A: In an attempt to provide further clarity to students, schools, teacher and Ohioans, H.B. 164 emphasizes the importance of protecting the religious liberties of public school students. The government must remain neutral in terms of religion, faith and religious practices. It is important for schools to remain neutral and avoid inhibiting religion, thus violating the rights of students.

H.B. 164 includes provisions designated as the Ohio Student Religious Liberties Act of 2019. The Act requires public schools to give students who wish to meet for the purpose of religious expression the same access to school facilities as secular student groups. It also authorizes students enrolled in public schools to engage in religious expression before, during, and after school hours in the same manner and to the same extent that a student may engage in secular activities or expression before, during, and after school hours. Thus, there is no longer a limit on the exercise or expression of religion to only lunch periods or other non-instructional periods. The Act prohibits any restriction on a student from engaging in religious expression in the completion of assignments or otherwise rewarding or penalizing a student based on the religious content of the student’s homework, artwork, or other assignments.

A: School districts may adopt a remote learning plan for the 2020-2021 school year. Such plans must be submitted to the ODE by July 31, 2020, but they will not need to be approved by ODE prior to implementation. Plans will be available on ODE’s website and must include:

A description of how student instructional needs will be determined and documented
The method for determining competency, granting credit, and promoting students to a higher grade level
Attendance requirements, including how the district will document participation in learning opportunities
A statement describing how student progress will be monitored
A description as to how equitable access to quality instruction will be ensured
A description of the professional development activities to be offered to teachers

School districts submitting the above plans will be considered compliant (for the 2020-2021 year only) with minimum-hours requirements and funding eligibility criteria. Students served remotely may not exceed 1.0 full time equivalency for state funding purposes.

If your school district is planning on implementing any remote or blended learning in 2020-2021, be specific. Delineate what students need to learn, how they’ll do it, and the ways in which competency and progress will be measured and documented. Inform parents and students of expectations – including attendance requirements – in detail and in advance. This limits unwelcome surprises and helps everyone adjust to the new normal. In designing your district’s remote learning plan, consider what worked during the spring of 2020 and what could have gone better. Use your data to build on success and improve where necessary. And, as always, document all decisions and rationales when it comes to student learning.

A: H.B. 164 provides flexibility for students who were scheduled to take, or re-take, an end-of-course (EOC) examination during the 2019-2020 school year, but did not do so because the administration of the examination was cancelled. Students in this situation may use their final course grade in lieu of a score on the EOC to satisfy the conditions for a high school diploma. Any letter grade of “C” or higher shall be deemed equivalent to a competency score. A pass designation also shall be equivalent to a competency score.

A student who completed a qualifying course in the 2019-2020 school year shall be deemed to have completed an administration of the EOC associated with that course.
A student who completed a qualifying course in the 2019-2020 school year may elect to take the EOC associated with that course in an administration of that examination in a subsequent school year.

H.B. 164 extends the flexibility provided in H.B. 197 related to the provision of telehealth services by speech and language pathologists, occupational therapists, physical therapists, counselors, social workers and intervention specialists through the end of the 2020-2021 school year.
H.B. 164 also adds school psychologists to the list of professionals who can provide telehealth services to students for the 2020-2021 school year.
Telehealth services from these providers can be provided to students accessing services via the Autism Scholarship Program, the Jon Peterson Special Needs Scholarship Program or any student who was enrolled in a public or private school who was receiving these services prior to the school closure order.
H.B. 164 continues the protections afforded to providers in H.B. 197 in that it specifies that no action can be taken by licensure boards to limit, suspend or revoke an individual’s license solely because the individual provided telehealth services to students in a manner consistent with H.B. 164.

Use of Value-Added and Student Growth Data for 2020-2021 Evaluations

Notwithstanding anything to the contrary in Ohio Revised Code (ORC) Sections 3319.02, 3319.111, and 3319.112, Boards are prohibited from using the following data to measure student learning attributable to a teacher or principal while conducting performance evaluations under ORC Section 3319.02, 3319.111, and 3319.112 for the 2020-2021 school year:

Value-added progress dimension data established under ORC Section 3302.01
Any other high-quality student data as defined by the State Board under ORC Section 3319.112
Any other student academic growth data

Boards only are permitted to use other evaluation factors and components prescribed under ORC Sections 3319.02, 3319.111, and 3319.112 to conduct teacher or principal performance evaluations under such sections for the 2020-2021 school year. Other evaluation factors and components include formal observations and classroom walkthroughs/informal observations, as well as performance rubric data.

Nothing in the section prohibits a board from considering, as part of a teacher’s or principal’s evaluation, how that teacher or principal collects, analyzes, and uses student data, including student academic growth data, to adapt instruction to meet individual student needs or to improve the teacher’s or principal’s practice. However, boards should keep in mind that even though the provisions of H.B. 164 allow for use of such data in this manner, collectively bargained language may either preclude such use or may create a need to bargain the impact of using data in such a manner.

Performance-Only Principal Evaluations

Notwithstanding anything to the contrary in ORC Section 3319.02, boards may choose to complete the 2019-2020 school year principal performance evaluations without use of student growth measures. Implementation of this language requires board action suspending the board’s current principal evaluation policy adopted to comply with the Ohio Principal Evaluation System.

Amendments to Section 7 of Senate Bill 216 (132nd General Assembly) regarding Evaluation and Repeal of Existing Senate Bill 216 Language. Notwithstanding the amendment or repeal of ORC Sections 3319.111, 3319.112, and 3319.114 by Senate Bill 216 for the 2018-2019 and 2019-2020 school years, the following shall apply:

Each school district, other than those participating in the pilot program established under Section 6 of Senate Bill 216, shall conduct teacher evaluations in accordance with those sections as they existed prior to November 2, 2018, except:
- If the board chooses to complete 2019-2020 school year evaluations without student growth measures as part of evaluations for teachers for whom ORC Section 3319.111(C)(2)(a) or (b) apply, the board may continue to evaluate such teachers every three or two years respectively.
Any teacher who did not have a student academic growth measure included as a part of the teacher’s 2019-2020 school year evaluation, shall remain at the same point in the teacher’s evaluation cycle and shall retain the same evaluation rating for the 2020-2021 school year as for the 2019-2020 school year.
Each state agency that employs teachers shall conduct teacher evaluations in accordance with its teacher evaluation policy developed under the former ORC Section 3319.112(E), as it existed prior to November 2, 2018.
Any reference in law to evaluations conducted under ORC Section 3319.111 or to “evaluation procedures” in ORC Section 3319.111, shall be construed to include evaluations conducted as required by this section and evaluation procedures required by this section.

A: H.B. 164 offers the ability to employ or reassign teachers with three or more years teaching experience to subject area(s) or grade level(s) for which the teacher is not licensed. Notwithstanding any provision of the ORC or any rule of the State Board of Education to the contrary, the superintendent may employ or reassign a person licensed under section 3319.22 of the ORC to teach a subject area for which the person is not licensed or a grade level for which the person is not licensed that is within two grade levels of the person’s licensure grade band for the 2020-2021 school year if that person has three or more years of teaching experience. It is not clear from the bill or related legislative summaries whether the three-year teaching experience requirement means overall teaching experience or just experience within the district at issue. Likewise, it is also not clear if substitute or long-term substitute teaching experience counts towards the three-year teaching experience requirement.

Statutory Criteria Temporarily Waived for Teachers for Third-Grade Reading Guarantee Remedial Services

For the 2020-2021 school year only, teachers assigned to provide intense remediation reading assistance to students who are subject to third-grade retention shall not be required to meet the criteria, including credentialing and experience criteria, set forth in division (H) of ORC 3313.608. This may provide districts with staffing flexibility.

One-Year Non-Renewable Provisional Licenses

Until July 1, 2021, ODE may issue a one-year, nonrenewable provisional license to any individual to practice in any category, type, and level for which the State board issues a license pursuant to Title 33 of the ORC, 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. To advance the license beyond the 1-year provisional status, the individual must take and pass the appropriate subject area examination prior to expiration of the license. Administrator licenses appear to be included in this provision.

If you have any questions about H.B. 164 and how it impacts your school district, students and teachers, please reach out.

A: Recognizing that school closures impacted student instruction and reduced available assessment data, Ohio’s legislature provides the following exemptions and prohibitions to Ohio’s Third Grade Reading Guarantee provisions:

Prohibits a school district/school from retaining a third-grade student who does not attain a passing score on the fall administration of the third grade English language arts achievement assessment, if the student’s principal and reading teacher agree that other assessments of the student’s reading skills demonstrate the reading competency necessary for 4^th grade promotion.
Prohibits the State Board of Education from the annual review and upward adjustment of the third grade English language arts assessment promotion score, and, instead, requires the use of the 2019-2020 promotion score of 683.
Exempts a teacher assigned to provide intense remediation reading services to a student pursuant to Third Grade Reading Guarantee requirements, from the training, licensure, evaluation criteria otherwise required.
Relieves otherwise eligible public school districts from district and/or school level reading achievement improvement plan requirements (this does not include individual student RIMPs).

The relief that H.B. 164 provides is only temporary for the 2020-2021 school year. As school districts utilize these opportunities for flexibility, it is imperative that any student retention and instructional decisions remain student centered. Decisions should remain focused on data and progress with the goals of quality instruction for reading-proficient students.

New Guidance for Early Intervention to Preschool Transition

A: The guidance, developed by the Ohio Department of Education (ODE) and the Ohio Department of Developmental Disabilities (DODD), in collaboration with the Ohio Association of County Boards of Developmental Disabilities (OACB), specifically addresses IDEA requirements with regard to early intervention planning conferences, initial Evaluation Team Reports and Initial Individualized Education Programs (IEPs).

A: Per the ODE and DODD, all early intervention and local education agency personnel should remain attentive in communicating with one another and completing the conferences as required.

Early intervention service coordinators should attempt to organize virtual transition planning conferences at least 90 days before the child’s third birthday.
All transition planning conferences should happen within the timelines established by state and federal law.

School districts are advised to remain mindful of the timelines applicable to the Part B to Part C transition. Transition meetings, as outlined above, should be held in a timely fashion and the decisions made at these meetings should be documented in a prior written notice.

A: Although it is understood that school districts may not be able to complete evaluations for Part B eligibility during this time, no dispensation from meeting timelines has been provided by the state or federal government.

School districts are still responsible for recording the date of the Part C transition planning conference as the referral date to Part B and documentation of all communications as result of the closures due to the pandemic.
It is mandatory that school personnel continue to make and document efforts to complete the IDEA Part B eligibility determination processes for children entering preschool special education programs.

Districts are encouraged to work in collaboration with early intervention teams to obtain existing data, early intervention team observations, and information to assist the evaluation team in determining eligibility. Additionally, as it is now possible in most instances to provide in-person assessments for students (if proper approvals are obtained and safety protocols are observed), districts should not rely on the pandemic or building closures as a rationale for not completing evaluations.

A: There is also no waiver of the timeline to develop and implement an Individualized Education Program (IEP) by a child’s third birthday.

Local educational agency teams are expected to proceed with the writing of an IEP, based on completed Evaluation Team Reports, team discussion, and information available from early intervention.
Early intervention continues to end on a child’s third birthday. Timelines have not been extended, waived, or become flexible.

As evaluations are completed, districts should develop an IEP for any eligible student within thirty (30) days of the completion of the evaluation (or by the child’s third birthday, whichever is earlier). Although there is lingering uncertainty regarding what school will look like in the fall, IEP teams should draft IEPs based on a “typical” school year (e.g., assuming in-person instruction) and the student’s needs.

Students with Disabilities Transitioning from Preschool to Kindergarten

A: On June 30, 2020, the Ohio Department of Education announced that preschool students with disabilities who were identified under the category of “developmental delay” for the 2019-2020 school year will be able to transition to kindergarten for the 2020-2021 school year without undergoing an evaluation to determine a school-age disability category. These students can be reported in EMIS when they enter kindergarten for the 2020-2021 school year with the “developmental delay” disability category.

A: This temporary change was made due to the COVID-19 school-building closures which made completion of reevaluations for these students extremely difficult. The change is temporary and is in effect from July 1, 2020 through December 1, 2020.

A: Districts must complete evaluations of any student who transitioned to kindergarten under the “developmental delay” category no later than December 1, 2020. As of December 2, 2020, the ability to report a kindergarten student under the “developmental delay” category will end. Districts are urged to utilize this flexibility where needed, but to complete evaluations for students identified under “developmental delay” as quickly as possible.

State and Federal Guidance for Special Education

A: On June 29, 2020, the Ohio Department of Education issued “COVID-19 Guidance: Data Reporting for Students with Disabilities FAQ.” The guidance addresses EMIS reporting for noncompliance events that occurred due to the COVID-19 school-building closure during the 2019-2020 school year.

The bottom line from the guidance is summarized as follows:

No timelines have been waived due to the school-building closure (this includes initial evaluations, re-evaluations, initial IEPs, IEP annual reviews and Part C to Part B transitions).
There are no new EMIS noncompliance codes to use when reporting that an event did not take place in a timely fashion due to the school-building closure.
It is unclear what ODE/OEC will do going forward with respect to monitoring and/or corrective action based on noncompliance due to the school-building closure. Further guidance will be issued regarding this, but no timeframe was provided.

A: Notably, the guidance speaks to the circumstances under which a reevaluation can be waived. While the guidance states that this option is “reserved for students who are accepting a diploma or who are so medically fragile that completing a reevaluation would not be possible,” the Operating Standards allow for the waiver of a reevaluation if the parent and the school district agree that a reevaluation is unnecessary. See O.A.C. 3301-51-06(D)(2)(b). A key take-away from this guidance for school districts is that, in the event the district has ETRs and/or IEPs that are noncompliant due to the school-building closure, every effort should be made to complete these documents prior to the start of the 2020-2021 school year.

A: On June 22, 2020, the Office of Special Education Programs (OSEP) issued a Question and Answer document regarding the dispute resolution process for students receiving services under Part B of the IDEA during the current COVID-19 environment. The Q & A document is summarized as follows:

Dispute resolution procedures, including state complaints, due process complaints and mediations, will continue during the COVID-19 pandemic.
Timelines for dispute resolution, including the 60-day state complaint timeline and timelines related to due process complaints (i.e., resolution period, timeline for issuance of a decision, etc.) can be extended on a case-by-case basis.
Meetings needed for dispute resolution, including mediation and due process hearings, can occur virtually (e.g., via Zoom, Google Meets, etc.)

A: In Ohio, mediations have been occurring remotely even prior to the school closure order being issued in March. ODE has provided training for impartial hearing officers to conduct remote hearings; however, the individual hearing officers have the discretion to hold the hearing remotely or to schedule an in-person hearing if social distancing can be maintained.

A: On June 26, 2020, OSEP also issued a Q & A document regarding flexibility in the implementation of the IDEA’s Part B fiscal requirements in the current COVID-19 environment. The Q & A document provides guidance to local education agencies on maintenance of effort. Specifically, the document states that flexibility exists for meeting maintenance of effort requirements and provides guidance regarding this issue. Districts that have specific questions or circumstances that could make MOE problematic should refer to the information in the guidance applicable to their specific circumstance.

Federal Funding

A: U.S. Secretary of Education Betsy DeVos has authorized flexible funding to allow schools to re-purpose existing K-12 education funds to the areas of highest need during the national emergency, such as technology infrastructure and teacher training.

A: The CARES Act, signed into law by President Trump on March 27th, permits states and school districts to allocate more of their federal resources to technology infrastructure. The expectation is that the additional resources will better support virtual learning for students and professional development for teachers who are now forced to teach remotely. By providing a streamlined process to obtain flexible funding, states will be able to make decisions more quickly in order to meet the needs of their districts throughout the pandemic.

A: To apply, states need to fill out this form. The form will ultimately allow states to receive the flexibility to use funds covered under the Elementary and Secondary Education Act of 1965 (ESEA), including the Title I, Parts A-D, Title II, Title III, Part A, Title IV, Parts A-B, and Title V programs. Specifically, states may request a waiver of:

Section 1127(b) of Title I, Part A of the ESEA to waive the 15% carryover limitation for Title I, Part A funds
Section 421(b) of the General Education Provisions Act (GEPA) to extend the period of availability of prior fiscal year funds, for Title I, Parts A-D, Title II, Title III, Part A, Title IV, Parts A-B, and Title V, Part B programs, and the McKinney-Vento Homeless Children and Youth program
Section 4106(d) of Title IV, Part A of the ESEA to waive a needs assessment to justify the use of funds
Section 4106(e)(2)(C), (D), and (E) of Title IV, Part A of the ESEA to waive content-specific spending requirements
Section 4109(b) of Title IV, Part A of the ESEA to waive spending restrictions on technology infrastructure
Section 8101(42) of the ESEA to waive the definition of “professional development,” which might otherwise limit the ability to quickly train school leaders and teachers on topics like effective distance-learning techniques

A: The Department of Education announced a waiver process, which authorizes states to cancel federally-mandated standardized testing. In response to widespread school closures, the department has also issued guidance for local educators to ensure students with disabilities have access to distance-learning opportunities. Furthermore, the department is providing states additional time to develop education plans under the Strengthening Career and Technical Education for the 21st Century Act (Perkins V).

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