June 22, 2020 

Ohio Governor Mike DeWine signed Ohio House Bill 164 (H.B. 164) on Friday, June 19, 2020, 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.

The most noteworthy policy changes in H.B. 164 are outlined below.

School District Funding Adjustments

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.

Student Religious Expression

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.

Remote Learning

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 must also be included. Attendance requirements, including how the district will document participation in learning opportunities, a statement describing how student progress will be monitored and a description as to how equitable access to quality instruction must be ensured. Lastly, a description of the professional development activities to be offered to teachers should also be submitted.

School districts submitting the above plans will be considered compliant (for the 2020-2021 year only) with minimum-hour 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.

End-of-Course Examinations

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.

Telehealth and Students with Disabilities

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.

Evaluations

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 or 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.

Teacher Licensures

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 one-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 here.