Yesterday, both the Ohio Senate and Ohio House passed emergency legislation – House Bill 197 – addressing a variety of immediate issues caused by COVID-19, including extensive measures that apply to schools. Governor DeWine is expected to sign the legislation Friday, and as a result the emergency legislation will go into effect immediately. The following is a summary of the HB 197 provisions that apply to school districts:
Distance Learning, Make Up of Hours
For the 2019-2020 school year, HB 197 permits school districts, STEM schools, community schools that are not Internet- or computer-based schools (e-schools), and chartered nonpublic schools to make up through distance learning any number of days or hours necessary due to school closures as a result of the Director of Health's order "In Re: Order the Closure of All K-12 Schools in the State of Ohio" issued on March 14, 2020, any local board of health order, or any extension of an order regarding COVID-19. The mechanism in the bill for making up lost hours through virtual instruction is Ohio Revised Code 3313.482, the law that addresses online make up days/hour equivalent, traditionally called “blizzard bags.”
A district or school may amend its existing distance learning plan, or adopt one if it does not have an existing plan, to make up days or hours, without a three-day cap on the number of virtual hours that can count toward the state minimum hours of instruction. (Current law limits make up through distance learning to not more than the hour equivalent of three days – i.e., “blizzard bag” hours.)
Please note, this will require district boards of education to pass a resolution to amend or adopt such a virtual learning plan, and so this should go to the top of districts’ “to-do” list in terms of addressing the impact of COVID-19. Also recall that the existing legislation, ORC 3313.482, contains a number of parameters for such distance learning plans, including, for example, that students access and complete classroom lessons posted on the district's web portal or web site; discretionary distribution of paper copies; parameters around grading; and the written consent of the teachers' union.
Virtual Board Meetings
In accordance with HB 197, during the period of the emergency declared by Executive Order 2020-01D, issued on March 9, 2020, but not beyond December 1, 2020, if the period of the emergency continues beyond that date, the board of education may hold and attend meetings and may conduct and attend hearings by means of teleconference, video conference, or any other similar electronic technology and all of the following apply:
(1) Any resolution, rule, or formal action of any kind shall have the same effect as if it had occurred during an open meeting or hearing.
(2) Board members who attend meetings or hearings by teleconference, video conference, or any other similar electronic technology, shall be considered present as if in person at the meeting or hearing, shall be permitted to vote, and shall be counted for purposes of determining whether a quorum is present at the meeting or hearing.
(3) The Board shall provide notification of meetings and hearings held under this section to the public, to the media that have requested notification of a meeting, and to the parties required to be notified of a hearing, at least twenty-four hours in advance of the meeting or hearing by reasonable methods by which any person may determine the time, location, and the manner by which the meeting or hearing will be conducted, except in the event of an emergency requiring immediate official action. In the event of an emergency, the board shall immediately notify the news media that have requested notification or the parties required to be notified of a hearing of the time, place, and purpose of the meeting or hearing.
(4) The board shall provide the public access to a meeting held under this section, and to any hearing held under this section that the public would otherwise be entitled to attend, commensurate with the method in which the meeting or hearing is being conducted, including, but not limited to, examples such as live-streaming by means of the internet, local radio, television, cable, or public access channels, call in information for a teleconference, or by means of any other similar electronic technology. The board shall ensure that the public can observe and hear the discussions and deliberations of all the members of the public body, whether the member is participating in person or electronically. Please note, the legislation does not address public comment.
Boards should review their policies and determine whether public comment can be accomplished in accordance with the board policy, and if not, consider a resolution to address how public comment will (or will not) be achieved during the period of emergency. In addition, districts should be sure to continue to include in special meeting notices the purpose of the meeting, in addition to the place, time, and method of the virtual meeting.
State Testing, and Numerous Additional Waivers of Education Requirements
For the 2019-2020 school year, the following applies to school districts:
1. State testing: HB 197 exempts all public and chartered nonpublic schools from administering state achievement and alternative assessments, including the Ohio English Language Proficiency Assessment administered to English learners, WebXams, and the Alternate Assessment for Students with Significant Cognitive Disabilities.
2. HB 197 prohibits certain penalties from applying to schools and/or students for the lack of state testing:
a. Prohibits ODE from subtracting from a district or school's state aid account for students who were unable to complete assessments.
b. Prohibits an e-school from withdrawing students who were unable to complete assessments.
c. Specifies that students participating in the Educational Choice Scholarship Program, the Jon Peterson Special Needs Scholarship Program, or the Pilot Project (Cleveland) Scholarship Program must be considered eligible to renew that scholarship for the 2020-2021 school year in spite of the student not being administered an assessment in the 2019-2020 school year, subject to additional provisions in HB 197 regarding EdChoice (see below).
3. Report Cards: HB 197 prohibits ODE from publishing and issuing ratings for overall grades, components, and individual measures on the state report cards, report cards for dropout recovery schools, report cards for joint vocational school districts and other career-technical planning districts, and submitting preliminary data for report cards for school districts and buildings.
4. HB 197 establishes a “safe harbor” from penalties and sanctions for districts and schools based on the absence of state report card grades for the 2019-2020 school year. Includes safe harbor from:
a. Restructuring under state law based on poor performance;
b. The Columbus City School Pilot Project;
c. Provisions for academic distress commissions and progressive consequences for existing commissions (but specifically retains the CEO’s powers prior to the 2020-2021 school year);
d. Buildings becoming subject to the Educational Choice Scholarship;
e. Determination of "challenged school districts" where new start-up community schools may be located;
f. Community school closure requirements;
g. Identification of school districts and buildings for federal and state targeted support and improvement;
h. Conditions under which community schools may change sponsors.
It is important to note, that if a school district was subject to the above sanctions for the 2019-2020 school year, those sanctions will continue for 2020-2021. The absence of report card data for the 2019-2020 school year does not create a new starting point for these sanctions, and determinations for penalties are based on other report card years.
5. Third Grade Reading Guarantee: HB 197 exempts schools from retaining students in the third grade under the Third-Grade Reading Guarantee, unless the school principal and student's reading teacher determine the student is not reading at grade level.
6. Graduation: HB 197 permits public and private schools to grant a diploma to any student on track to graduate and for whom the principal, in consultation with teachers and counselors, determines that the student has successfully completed the student's high school curriculum or individualized education program at the time of the Health Director's school closure order. HB 197 also permits a district or school that has previously adopted a resolution to exceed the minimum curriculum requirements prescribed under current law to elect to require only the minimum curriculum for the purpose of determining high school graduation for the 2019-2020 school year.
7. HB 197 declares the “intent of the General Assembly” that school districts and other public and private schools continue to find ways to keep students actively engaged in learning opportunities for the remainder of the school year, and to grant students who need in-person instructional experiences to complete diploma requirements or career-technical education programs to access school facilities as soon as reasonably possible after the Director of Health permits such access, even if the last instructional day of the school year has passed.
8. Value Added: HB 197 prohibits the use of the value-added progress dimension from the 2019-2020 school year to measure student learning attributable to teachers for their performance evaluations.
9. For community school sponsor ratings, HB 197: (1) prohibits ODE from issuing a rating for the academic performance component; (2) prohibits the use of that rating for the overall rating; and (3) prohibits ODE from finding a sponsor out of compliance with applicable laws and rules for any requirement for an action that should have occurred while schools were closed.
10. HB 197 permits the Superintendent of Public Instruction to waive the requirement to complete any report based on data from assessments that were to be administered in the 2019-2020 school year.
11. One-year provisional licences: HB 197 permits ODE to issue one-year, nonrenewable, provisional licenses to educators that have met all other requirements for the requested license except for the requirement to pass a subject area exam prescribed by the State Board. However, an educator that is issued a provisional license is required to take and pass the appropriate subject area exam prior to expiration of the license as a condition of advancing the license.
12. ODE Authority: Gives authority to the State Superintendent to adjust deadlines set in current law and required of the State Board of Education, educators, and schools, including:
a. Teacher evaluations (e.g., the May 1 and May 10 deadlines; however, please note that you should continue to refer to your CBAs and/or handbooks and/or board policies regarding negotiated OTES terms);
b. Intent to reemploy notifications (currently June 1);
c. School safety drills;
d. Emergency management tests;
e. Requirements to fill a vacancy on a board of education;
f. Updating teacher evaluation policies (e.g., OTES 2.0); and
g. Gifted screening requirements.
13. HB 197 permits the Chancellor of Higher Education, in consultation with the Superintendent of Public Instruction to extend, waive, or otherwise modify requirements of the College Credit Plus Program.
14. HB 197 permits the Superintendent of Public Instruction to waive or extend deadlines, or otherwise grant providers and students flexibility, for completion of adult education program requirements interrupted due to the COVID-19 outbreak.
15. Homeschooling: HB 197 waives the requirement that the parents of a homeschooled student must submit assessment data to the resident school district as a condition of the district allowing the student to continue to receive home instruction for the 2020-2021 school year.
16. Evaluation: HB 197 allows (but does not require) a board of education to elect not to conduct evaluations of district employees, including teachers, administrators, or a superintendent for the 2019-2020 school year, if the district board determines that it would be impossible or impracticable to do so. If a district board elects not to evaluate an employee for the 2019-2020 school year, the employee shall be considered not to have had evaluation procedures complied with and shall not be penalized for the purpose of reemployment. As such, districts should consider consulting with legal counsel before making a determination to waive evaluations. HB 197 also states that the district board may collaborate with any bargaining organization representing employees of the district in determining whether to complete evaluations for the 2019-2020 school year. The bill does not prevent a district board from using an evaluation completed prior to the Director of Health's order in employment decisions.
Educational Choice Scholarship
The bill, with significant exceptions, prohibits ODE from accepting, processing, and awarding first-time performance-based Educational Choice scholarships for the 2020-2021 school year to students first eligible to receive those scholarships in that school year. This will prevent the exponential growth of the number of impacted buildings from roughly 500 in the 2019-2020 school year to roughly 1,200 for the 2020-2021 school year. However, those districts who were on the EdChoice list in 2019-2020 will continue to be on the list in 2020-2021.
Exceptions to the general prohibition on first-time recipients in 2020-2021 includes that ODE must accept, process, and award first-time performance-based scholarships, to be paid through the usual deduct from public schools’ budgets and transfer to private schools’ budgets, to a student:
a. whose sibling received a performance-based scholarship in the 2019-2020 school year,
b. who is enrolled in, or would be enrolled in, a school building that satisfied the conditions for eligibility for performance-based scholarships in the 2019-2020 school year, and
c. who was enrolled in a public or nonpublic school in any of grades K-12 or was homeschooled for the equivalent of those grades for the 2019-2020 school year, or will be enrolled in kindergarten in a public or nonpublic school or will begin homeschooling for the equivalent of kindergarten in the 2020-2021 school year.
HB 197 defines "sibling" as a brother, half-brother, sister, or half-sister, by birth, adoption, or marriage, without regard to residence or custodial status, or a child residing in the same household as a foster child or under a guardianship or custodial order.
HB 197 also requires ODE to accept, process, and award Educational Choice scholarships, to be paid through the usual deduct and transfer method, to students who received one in the prior school year and to students who were eligible in the 2019-2020 and 2020-2021 school years, but did not receive one in the 2019-2020 school year.
HB 197 also requires ODE to accept, process, and award Educational Choice scholarships, to be paid through the usual deduct and transfer method, to students who are or would be newly enrolled in a building or district that would qualify a student for a scholarship in both the 2019-2020 and 2020-2021 school years, including entering kindergarten students, rising high school students, and students who move into a qualified building's district or territory.
HB 197 also requires ODE to resume accepting, processing, and awarding performance-based Educational Choice scholarships on February 1, 2021, for scholarships for the 2021-2022 school year. (It maintains 60-day window beginning April 1, 2020, for performance-based scholarships for students eligible to receive one for the 2020-2021 school year.)
Delivery of Services to Special Needs Students
During the duration of the Director of Health's order "In Re: Order the Closure of All K-12 Schools in the State of Ohio" issued on March 14, 2020, local board of health order, or extension of any order, or until December 1, 2020, if the order or extension of the order has not been rescinded by that date, permits the holders of licenses issued by the following boards to provide services electronically or via telehealth communication to children who receive services through their resident school districts or under the Autism Scholarship or the Jon Peterson Special Needs Scholarship with no penalty:
a. The Ohio Speech and Hearing Professionals Board;
b. The Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board;
c. The State Board of Psychology;
d. the Counselor, Social Worker, and Marriage and Family Therapist Board;
e. the State Board of Education, with respect to intervention specialists.
Extension of Absentee Voting for March 17, 2020, Primary Election
There will be no in-person voting for Ohio’s 2020 primary election under HB 197 (except for disabled voters needing special assistance), but mail-in balloting would be allowed to continue through April 28, 2020. Absentee ballots will have prepaid postage, and HB 197 gives a 10-day grace period for ballots to arrive by mail.
Summer Meals
Schools will receive a temporary exemption from state food-processing requirements so they can continue serving meals to students during the summer months.
Expiration of State-Issued Licenses
HB 197 includes a general provision regarding licenses and certifications issues by state agencies, and how such licenses will be addressed during the term of this emergency period. That would include, for example, teaching licenses and other licenses/certifications issued by the Ohio Department of Education.
HB 197 extends current law deadlines with which a licensee must comply to maintain a license's validity that occurs during the emergency declared by Executive Order 2020-01D until the sooner of 90 days after the emergency ends or December 1, 2020.
HB 197 also extends a license's validity until the sooner of 90 days after the emergency declared by Executive Order 2020-01D ends or December 1, 2020, if the license would otherwise expire during the emergency, unless it is revoked, suspended, or otherwise subject to discipline or limitation under the applicable law for reasons other than complying with the deadline extensions by delaying in taking action to maintain the license.
Audits
HB 197 specifies that the Auditor of State, for an audit period during which the emergency declared by Executive Order 2020-01D, issued on March 9, 2020, is or was in effect, may waive:
a. The current law requirement that the Auditor of State conduct a standard financial audit after conducting an agreed upon procedure audit in two consecutive audit periods; and
b. All criteria a public office is required to satisfy in order for the Auditor of State to conduct an agreed-upon procedure audit instead of a standard financial audit (currently, the Auditor of State may waive one criterion).
Step Up to Quality
HB 197 also extends to September 1, 2020 (from July 1, 2020) the date by which publicly funded child-care providers must be rated through the Step Up to Quality Program.
Please note this is the most up-to-date information available today, March 26, 2020; this matter is evolving as additional guidance is released by the state.