Ohio Legislature Passes Emergency Bill to Address COVID-19, Including Extensive Measures Impacting Schools

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. 

Lindsay Gingo & Megan Bair Named to List of “Rising Stars” in 2020 Edition of Ohio Super Lawyers

Lindsay Gingo and Megan Bair have been selected as Rising Stars in the 2020 edition of Ohio Super Lawyers. While Lindsay was originally selected an Ohio Rising Star in 2012 and Megan in 2017, both have continued to be recognized every year following their initial selection. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

ODE Approves Revised Licensure Code of Professional Conduct for Ohio Educators

The Ohio Department of Education approved a revised version of the Licensure Code of Professional Conduct for Ohio Educators, after two rounds of public comment.  The final revised version is substantially similar to the last draft (which we discussed here in April), but has a few changes. 

The final version clarified with more detail about the educators to whom the Licensure Code applies.  “Ohio educators” are defined as “all individuals applying for a credential or individuals credentialed by the State Board of Education…such as teachers, principals, superintendents, educational aides, coaches, substitute teachers and others credentialed by the State Board of Education.” 

Regarding Principle One, the draft revisions included the new violation of failing to verify that an educator is properly credential by ODE prior to hiring.  The final version only makes that failure a violation if it is done negligently. 

For Principle Three, the final version clarifies that if an employee makes any report required under the Licensure Code, in good faith, such a report is not considered “conduct unbecoming” and the reporting educator cannot be subject to retaliation.

Importantly, the new Principle Nine regarding Appropriate and Responsible Use of Technology remains in the final version and should be carefully reviewed by educators to ensure compliance.  Please contact your legal counsel for further information on incorporating the new rules and appropriately notifying impacted staff members.

The final version is available for download in Items 35 of the following: ftp://ftp.ode.state.oh.us/StateBoardBooks/Sept-2019/Voting%20Items/. ODE’s web site is not yet updated as of the date of this blog entry.

Lindsay Gingo Law, LLC Welcomes Partner Megan Bair

We are pleased to announce that Lindsay Gingo Law, LLC is partnering with education law attorney Megan Bair to create the firm of Gingo & Bair Law, LLC.  Like Lindsay and Sarah, Megan has dedicated her practice exclusively to representing Ohio school districts. Megan comes from a family of educators, and so in addition to providing sound legal counsel, she has a unique understanding of how that counsel impacts a school district and the community it serves.

Joining practices enhances our ability to broaden our scope of services while maintaining a customized approach to advocating for public school districts.  We are excited about this new endeavor, thrilled to work with Megan, and look forward to expanding our vision of providing exceptional legal services in education.

Megan’s scope of practice is broad; she advises districts regarding all facets of labor and employment issues, human resources, student rights and discipline, labor disputes, public records law, employee benefits, special education, student privacy issues, and board governance issues. She has served as lead negotiator in bargaining for teachers and non-teaching staff, defended boards of education at arbitration, in special education due process hearings and against charges filed with state and federal administrative agencies, including the Ohio Civil Rights Commission; U.S. Equal Employment Opportunity Commission; and U.S. Department Education, Office for Civil Rights.

With an understanding of small-firm and large-firm models, Gingo & Bair will continue to provide districts with "in-house" professional services that foster a close attorney-client relationship rooted in trust and confidence.

U.S. Department of Labor Announces Final Overtime Rule, Making More Than a Million Workers Eligible for Overtime Pay

In late September, 2019, the U.S. Department of Labor announced a final rule to make 1.3 million American workers eligible for overtime pay under the Fair Labor Standards Act (FLSA). The changes discussed below will be effective on January 1, 2020.

The final rule updates the earnings thresholds necessary to exempt executive, administrative, and professional employees from the FLSA’s minimum wage and overtime pay requirements, and allows employers to count a portion of certain bonuses and commission towards meeting the salary level.  The new thresholds account for growth in employee earnings since the currently enforced thresholds were set in 2004.  In the final rule, the Department is:

• Raising the “standard salary level” from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);

• Raising the total annual compensation level for “highly compensated employees (HCE)” from the currently enforced level of $100,000 to $107,432 per year; and

• Allowing employers to use non-discretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level, in recognition of evolving pay practices.

The Department has formally rescinded the 2016 final rule that increased the standard salary level from $23,660 to $47,476, which was declared invalid by the United States District Court for the Eastern District of Texas. The District Court decision was later appealed to the United States Court of Appeals for the Fifth Circuit, where it was held in abeyance pending the completion of the Department’s rulemaking. 

In the final rule the Department reaffirms its intent to update the earnings thresholds more regularly in the future through notice-and-comment rulemaking to avoid lengthy delays between updates, which necessitates disruptively large increase when overdue updates finally occur.

The Department’s final rule is available here.

Department of Labor: Parents Can Take FMLA Leave to Attend IEP Meetings

Based on the U.S. Department of Labor’s recent opinion letter, the need to attend an IEP meeting addressing the educational and special medical needs of a child—who has a serious health condition as certified by a health care provider—is a qualifying reason for a parent to take intermittent FMLA leave. The DOL decided that a parent’s attendance at an IEP meeting is “essential to [the parent’s] ability to provide appropriate physical or psychological care” of the child.  The child’s doctor is not required to be present at the IEP meeting in order for the parent to qualify for intermittent FMLA leave.

If the employee notifies his or her employer about the need to take intermittent FMLA leave to attend a meeting at school associated with the child’s serious health condition, this would be sufficient to permit the parent FMLA leave.  It is likely that the DOL would not require the parent to specify that it is an IEP meeting, but would require that the meeting be about the child’s serious health condition.  A school disciplinary meeting for a child, for example, would be unlikely to qualify for intermittent FMLA leave. 

Importantly, the DOL did explain that this opinion was for two students with “qualifying serious health conditions under the FMLA.’”  Therefore, it would be within the employer’s right to request a Certification of Health Care Provider for Family Member’s Serious Health Condition regarding the  child’s serious health condition prior to granting the intermittent FMLA leave to attend a child’s IEP meeting. 

 Contact your legal counsel regarding implementation of this new requirement.

Impact of the Biennial Budget Bill on Ohio Public Schools

Every two years, the Ohio General Assembly is tasked with determining Ohio’s budget that will apply for the following two-year period.  The Biennial Budget Bill (House Bill 166) contains extensive and substantive statutory changes, many of which impact school districts.  Governor Mike DeWine signed the bill on July 18, 2019, after vetoing several provisions.  The relevant changes are:

School Finance: As expected in the budget bill, there are numerous funding changes.

The bill suspends the use of the current foundation aid funding formula for FY 2020 and FY 2021.  Instead, every district will receive the same amount of foundation funding it received in FY 2019. The FY 2019 state share will now be used to calculate any other payments that use the district’s state share index or state share percentage.  For open enrollment, College Credit Plus, and other payments for which the formula amount is used, the FY 2019 formula amount ($6,020) is the amount for FY 2020 and FY 2021.

ODE is now required to make an additional payment for FY 2020 and FY 2021 to each school district, with at least 50 enrolled students, that experiences an average annual percentage change in its enrollment between FY 2016 and FY 2019 that is greater than zero.  

The bill requires ODE to provide new funding for “student wellness and success.”  The funds will go to all districts on a per pupil basis, to be spent on particular wellness initiates:

• Mental health services

• Services for homeless youth and child welfare involved youth

• Community liaisons

• Physical health care services

• Mentoring programs

• Family engagement and support services

• City connects programming

• Professional development regarding the provision of trauma informed care and cultural competence

• Student services provided prior to or after the regularly scheduled school day or any time school is not in session

For FY 2020 and FY 2021, the bill also creates a School Climate Grants program to implement positive behavior intervention and support frameworks, and social and emotional learning initiatives in school buildings that serve any of grades K-3.  A maximum grant amount of $5,000 may be awarded in each fiscal year for each eligible school building in an applicant’s grant proposal, for up to ten schools per proposal.

For STEM schools operated from multiple facilities located in one or more school districts that are directed by a single governing body, the bill now requires ODE to pay all funds for each STEM school to the governing body of the group, rather than directly to each school as under current law.  The governing body must then distribute the funds to the school districts.  ODE will also be issuing a separate building identification number to each STEM school within the group. 

The Governor vetoed a provision that would have guaranteed school districts at least as much funding per pupil as the statewide per pupil amount paid to chartered nonpublic schools in Auxiliary Services funds and for administrative costs reimbursements, beginning in 2022.

Graduation Requirements: The bill creates a new set of high school graduation requirements for students graduating in 2023 or after.  Students in the classes of 2018 through 2022 (students who entered 9th grade on or after July 1, 2014, but before July 1, 2017) can use these requirements if they so choose.

To graduate, a student must:

• Attain a “competency score” on the English language arts II and Algebra I end-of-course exams; and

• Earn two state diploma seals from a system of state diploma seals (schools must now create a school-defined seal).

If a student fails to attain a competency score on one or both of the required end-of-course exams, the student still may meet the requirements through the following alternative demonstrations of competency (available after the district provides required remedial support and the student attempts the end-of-course exams again):

•  Earning credit through College Credit Plus in the failed subject area

• Enlisting in the US armed forces

• Completing additional testing options in work-based programs

The IEP of a student receiving special education must specify the manner in which the student will participate in assessments related to the new graduation requirements. 

By June 30, 2020, each school district must adopt a policy regarding students who are at risk of not qualifying for a high school diploma that includes elements like the criteria and procedure for identifying at-risk students, a requirement that the district assist the at-risk students with additional instruction and support services, and the development of a graduation plan.  The district can use the IEP in lieu of developing a graduation plan if the IEP contains academic goals substantively similar to a graduation plan.

Changes to end-of-course exams: Starting with the class of 2023, students will only be required to complete the following end-of-course exams:

•  English language arts II;

• Science;

• Algebra I;

• American history; and

• American government.

Previously, students were also required to take English language arts I and geometry end-of-course exams.  The bill notes that ODE must seek a federal waiver to eliminate the geometry end-of-course exam, and that if such a waiver cannot be obtained, geometry will still be required.

The bill notes that the English language arts II and Algebra I end-of-course exams will be required for graduation.  Students also cannot be required to retake the Algebra I or English language arts II end-of-course exams in 9th through 12th grade if the student received a proficient or higher score, or attained a competency score, prior to 9th grade.

State Report Card:  The bill also makes some notable changes to the state report cards. The bill changes the way letter grades are determined for the value-added progress dimension through the “gain index”:

• A score of 1 or greater is designated as an “A” (previously was 2 or greater);

• A score that is less than 1 but not greater than -1 (previously was at least 1 but less than 2) is designated as a “B”;

• A score that is less than or equal to -1 but greater than -2 is designated as a “C”;

• A score that is less than or equal to -2 but greater than -3 is designated as a “D”; and

• A score that is less than -3 or below is designated as a “F”.

Districts may not get an “A” on the value-added progress dimension unless district/building subgroups (gifted students, students with disabilities, and students whose performance is in the lowest quintile for achievement) get a “C” or higher (previously, subgroups had to get a “B”).

State assessments for student with disabilities educated at chartered nonpublic schools: The bill permits a chartered nonpublic school to develop a written plan to excuse a student with a disability from taking state assessments if the school and the parents agree the assessment (or alternative assessment) does not accurately assess the student’s academic performance and the plan includes an academic profile of the student’s process and is reviewed annually.

EdChoice Scholarship Program: Some notable changes were made to the EdChoice Scholarship Program.  First, if the number of applicants for an EdChoice scholarship for a school year exceeds 90% of the maximum number prescribed by statute (currently 60,000), ODE must increase the limit by 5% for the next year.

One major change that will have a substantial effect on some districts is the provision that now qualifies students already enrolled in grades 8-11 in a chartered nonpublic school without a state scholarship or students who are currently homeschooled without a state scholarship in the school year prior, and the school in which the student would be assigned has a “D” or “F” cohort graduation rate in two of the three most recent report cards.  Currently, a student already enrolled in a chartered nonpublic school or homeschooled is not eligible for an EdChoice scholarship, although it has become a grey area given a change in ODE interpretation of prior law.

The bill expands eligibility for income-based EdChoice scholarships (“EdChoice Expansion”) to all students entering grades K-12 for the first time, beginning with the 2020-2021 school year. Prior to this, the EdChoice Expansion scholarships were only available to one new grade level each year (starting with kindergarten in the 2013-14 school year).  As of the 2018-19 school year, such scholarships were only available to grades K-5.  The bill also states that a student’s EdChoice scholarship must be computed prior to the application of any other sources of financial aid received by the student.

Beginning with the 2020-2021 school year, ODE must also conduct a priority application period between January 1 and May 1 to award EdChoice scholarships, and award priority scholarships no later than May 31 prior to the first day of July of the school year for which a scholarship is sought. Under prior law, there are two application windows, February 1 to July 1 for a period of at least 75 days and a period beginning July 1 to last at least 30 days. ODE must continue awarding EdChoice scholarships after the priority application period ends, prorating the amount if the student receives a scholarship after the school year begins, and in the case of income-based scholarships, award them only if the appropriated funds remain available.

Educational service centers: ESCs can now apply for state/federal grants on behalf of a school district, and can also contract on behalf of school districts to purchase supplies, materials, equipment, and services on their behalf.   The bill expressly provides that a school district that has a service agreement with an ESC is exempt from competitive bidding requirements for personnel-based services (provided certain requirements are met). 

School breakfast programs: Qualifying higher poverty public schools must now offer breakfast that complies with federal and state nutritional standards and meal patterns to students before or during the school day.  The district can charge students for meals to cover all or part of the cost, in accordance with federal requirements.  The program phases in over the next three years, gradually lowering the threshold under which schools qualify for the program based on the percentage of students that qualify for free or reduced-price meals.  Schools can choose not to establish a school breakfast program for financial reasons or if the school already has a successful breakfast program or partnership in place.

Student transportation: If a school district is providing transportation to a student it is not required to provide under ORC 3327.01, it cannot reduce that transportation after the first day of the school year.

School bus purchase assistance:  ODE is now required to partner with the Department of Public Safety to develop a program to provide school bus purchase assistance.  ODE must determine how the program will operate by January 31, 2020.

Involuntary lease or sale of school district property: A school district with real property that has been unused for school operations for one year (rather than two years as under prior law) must offer to lease or sell that property to community schools, STEM schools, and college-preparatory boarding schools located in the district.

Changes regarding teachers: A few notable changes were made to teacher salaries and licensure.

The minimum base salary for beginning teachers with a bachelor’s degree has been increased from $20,000 to $30,000 and the bill also increases proportionally the minimum salaries for teachers with different levels of education and experience.

Applicants for an alternative resident educator license now must have either a cumulative undergraduate GPA of 2.5 or a cumulative graduate school GPA of 3.0. Prior law required applicants to have an undergraduate GPA of 2.5.  Such applicants may now meet training requirements not only by a summer institute but also through pre-service training approved by the Chancellor of Higher Education.

For the 2019-2020 and 2020-2021 school years, an individual with a 7-12 educator license who has completed a professional development program approved by the superintendent/principal may teach computer science.  The superintendent must approve the College Board courses appropriate for the course the individual will teach.  This individual may teach computer science only in the district that approved the professional development program.

The Ohio State University Fisher College of Business and College of Education and Human Ecology now administers the Bright New Leaders Program, which now requires the State Board to issue a professional administrator license for grades pre-K through 12 to individuals who complete the program, instead of an alternative principal or administrator license as under current law.

The Governor vetoed a provision that would have repealed the prohibition against school districts employing teachers in a core subject area unless they are “properly certified or licensed teachers.”

Excessively absent students: Now when a student’s combined nonmedical excused absences and unexcused absences exceed 38 or more hours in one school month or 65 or more hours in a school year, that student is considered “excessively absent from school.” This differs from prior law, which specifies that a school district must consider all excused and unexcused absences (including medical excusals) when determining whether a student is excessively absent from school. The steps districts must take once a student meets the threshold for “excessively absent from school” are not changed by this bill.  Additionally, the law regarding identifying a student as “habitually truant” remains unchanged.

School child day-care programs: The bill clarifies that day-care centers that serve preschool children and child daycare centers that serve school-age children must meet or exceed the standards adopted by the Director of Job and Family Services.

Behavioral prevention initiatives: Every public school must now report to ODE on an annual basis the types of prevention-focused programs, services, and supports it uses to promote healthy behavior and decision-making by students and their understanding of the consequences of risky behaviors, such as substance abuse and bullying.

Storm shelter requirement: The Board of Building Standards cannot require the installation of a storm shelter in a public school building prior to September 15, 2021 (rather than September 15, 2019 under prior law), if the building has undergone a construction, alteration, repair, or maintenance project that received state financial assistance.

Consolidated school mandate report: The bill eliminates training on crisis prevention intervention and the establishment of a wellness committee from the consolidated school mandate report that each district annually must file with ODE. 

Athletics: School districts must now have the same transfer rules for public and nonpublic schools and cannot create rules, bylaws, or other regulations to the contrary.

The bill also permits any international student who attends an Ohio elementary or secondary school to participate in interscholastic athletics at that school on the same basis as students who are Ohio residents if the student holds an F-1 U.S. visa (even if the student’s parent does not reside in the state).

English learners: The bill changes all references of “limited English proficient student” in the Revised Code to “English learner” to align with recent amendments to federal law.

Please contact your legal counsel regarding the implementation of these changes in your district.

ODE Issues Draft Revisions to Licensure Code of Professional Conduct for Ohio Educators

The Ohio Department of Education is in the process of revising the Licensure Code of Professional Conduct for Ohio Educators.  The Code provides a guide for conduct in situations that have professional implications for all individuals credentialed by the State Board of Education, such as teachers, principals, superintendents, educational aides, coaches, and substitute teachers.

The Code is broken down into separate principles that the state believes are fundamental to high-quality educators.  All of the original eight principles have been revised, and ODE added a ninth principle.  The full draft Code is accessible here, and shows the exact language of all proposed changes.  The most significant proposed changes are identified below.

Principle One added that an educator violates the Code by having a continuing physical or mental inability, incapacity, or addiction that significantly impacts the educator’s ability to carry out his or her professional responsibilities and also renders the educator incapable of safely maintaining the care, custody, and control of students.  Failing to verify that an educator is properly credentialed by ODE prior to hiring is now a violation.  Principle One also expressly lists sexual harassment and academic dishonesty as violations of the Principle of Professional Behavior.  Finally, educators are also in violation of the Code if they assist another educator in violating the Code.

Principle Two was revised to expressly prohibit grooming a student or minor (described as befriending and establishing an emotional connection) for the purpose of an inappropriate emotional, romantic, or sexual relationship.  Educators are now also prohibited from encouraging or engaging in an inappropriate relationship with any individual who was a student in the preceding 12 months.

Principle Three clarifies how an educator could violate the requirement to accurately report information, such as falsifying, intentionally misrepresenting, willfully omitting or being negligent in reporting information (including prior discipline regarding the educator’s license) during an official investigation or when applying for employment or licensure. 

Principle Five now prohibits violating local, state, or federal procedures or laws relating to the confidentiality of standardized tests, test supplies, and resources.

Principle Six includes specific reference to an educator’s requirement to be a positive role model, and extends that requirement to an educator’s personal behavior outside of school.  It is now a violation for educators to engage in habitual and excessive abuse of alcohol, which is defined as two or more alcohol-related convictions within a five-year span or a severe alcohol-related conviction, such as a high blood alcohol content, significant injury or property damage, or an incident involving minors.

Principle Seven, previously titled “Accepting Compensation for Self Promotion or Personal Gain” was retitled “Financial Management and Improper Compensation for Personal Gain.”  ODE expressly states that educators must ensure all school funds and accounts are managed in a responsible and transparent manner, and in accordance with board policies as well as local, state, or federal laws.

Principle Eight, “Commitment to Contract,” was revised to clarify that consent is required to break an employment contract outside of the statutory period in ORC 3319.15, or 3314.103 for community schools.

ODE added a new proposed Principle to address “Appropriate and Responsible Use of Technology.”  Educators are required to use technology, electronic communications, and social media in a responsible and professional manner, as well as appropriately safeguard the unauthorized use or access to electronic devices and data entrusted to them.  This includes maintaining appropriate boundaries with colleagues, students, and the school community when using technology.  While recognizing educator’s constitutional rights, the Code reminds educators that “the words they chose, and the content of their statements can reflect negatively on their position, school, and profession.”  The Code outlines the specific conduct that violates this Principle:

• Failing to prevent students and others from accessing improper, inappropriate, or confidential material or data on the educator’s personal device or school-owned device;

• Using a school-owned device to access inappropriate and non-school-related material;

• Presenting inappropriate, non-school-related media to students;

• Using electronic communications to inappropriately communicate with students, such as using social media with students excessively for non-educational purposes;

• Failing to report or address electronic or online harassment, bullying, or intimidation of a student;

• Failing to appropriately intervene when made aware of inappropriate or illegal images or material involving minors in electronic forms;

• Using technology to host, post, or distribute improper or inappropriate material that could reasonably be accessed by the school community (including, but not limited to, pornography, obscene material, promotion of drug use or underage consumption of alcohol, promotion of violence, disparagement of students, and disparagement based upon gender, gender identity, race, sex, ethnicity, sexual orientation, disability, military status, or religion); and

• Using school technology to run, manage, or promote a personal business venture.

The Code outlines disciplinary actions for violating the new Principle Nine, which ranges from a letter of admonishment up to suspension (one day to five years).

The public comment period on the draft revisions ends next week.

Update on Ohio Lawsuits Filed to Enforce the Supreme Court’s Janus Ruling

There have been some changes in the two recent Ohio cases applying the U.S. Supreme Court’s ruling in Janus v. AFSCME. In the first case, Smith v. AFSCME Council 8, Case No. 2:18-CV-1226, the parties settled after the union agreed to refund all union dues collected after the employees notified union officials that they no longer consented to financially supporting the union post-Janus. More importantly, the union also agreed not to enforce its policy that requires employees wishing to change their dues deductions to do so within a 15-day window before the new collective bargaining agreement takes effect. The union also agreed to identify any other workers who were prevented from revoking their dues deduction authorization because of the “window period” policy and refund any dues collected under the policy. This is the first class action lawsuit in the U.S. since the Janus decision in which a union has agreed to end the use of a “window period” policy.

In Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11, Case No. 2:18-CV-1227, the union filed a Motion to Dismiss arguing that it complied with the Supreme Court’s decision in Janus since it was issued, so Ogle has no standing to sue. The union maintains that it previously took the fees in good faith under the prior law that permitted such fees, and that private parties should be able to safely rely on existing laws in ordering their affairs. Ogle defends his standing to sue based on the fact that the Ohio legislature has not removed O.R.C. § 4117.09(C) (the statute that permits fair share fees), despite the fact that the fees were deemed unconstitutional by Janus. He believes there is a credible threat that the unconstitutional law will be enforced against him, and, therefore, he wants the court to declare the statute unconstitutional and permanently enjoin the union from enforcing it. Ogle also argues that the union cannot raise a good faith defense against liability for charging fees prior to Janus. He believes he is entitled to discovery concerning whether officials knew or should have known taking agency fees was legally suspect and possibly a violation of the employees’ First Amendment rights, yet chose to continue taking the fees. The judge has yet to rule on the Motion to Dismiss.

Stricter Rules Coming for Parent Notification of Student Absence

Effective April 2019, new legislation requires Ohio school attendance officers to modify the steps they take to notify parents when a child is absent.  The law was passed following the tragic death of Alianna DeFreeze, a fourteen-year old Cleveland student.

The “Alianna Alert” law creates a new requirement that public schools make at least one attempt to notify parents/guardians/caretakers within two hours (120 minutes) after the beginning of each school day when their child is absent without legitimate excuse.

The school district attendance officer or his/her assistant or designee must use one of the following methods to contact the student’s parents/guardians/caretakers:

(1) An actual telephone call;

(2) An automated telephone call via a system that includes verification that each call was actually placed, and either the call was answered by its intended recipient or a voicemail was left by the automated system relaying the required information;

(3) A notification sent through the school's automated student information system; 

(4) A text message; 

(5) An email; 

(6) An actual visit to the student's residence; or 

(7) Any other method adopted by resolution of the school board.

If the parents/guardians/caretakers contact the school about the student’s excused or unexcused absence within the first 120 minutes of the school day, the district does not need to follow the contact rules above.

These new rules do not apply to students who are home schooled, enrolled in online courses, or enrolled in internet- or community-based instruction.  It also does not apply to students not expected to be in attendance due to the student’s participation in off-campus activities, such as the College Credit Plus program. 

The law does not repeal the current statute (O.R.C. 3313.205) that requires a board of education to adopt a written policy regarding notifying a student’s parents within a “reasonable time” when the student is absent.  But the law clarifies that the “reasonable time” requirement in that prior statute now means within 120 minutes of the start of the school day for an unexcused absence.

 An immunity provision is also included, providing that a school district or any officer, director, employee, or member of the school district board of education is not liable in damages in a civil action for injury, death, or loss to person or property arising from an employee’s action or inaction in good faith compliance with the notification requirements. 

School Treasurers No Longer Liable for Blameless Loss of Public Funds

Under a new Ohio law, school district and educational service center treasurers will no longer be strictly and individually liable for the loss or misuse of public money under their control, regardless of their own blame or fault.

Ohio House Bill 491, signed by Governor Kasich  on December 19, 2018, provides an exception to the general rule of strict liability for loss of public funds, where a a treasurer has performed all official duties with reasonable care. As a result, a treasurer will not be held liable unless the funds were lost as a result of the treasurer's own negligence or other wrongful act. House Bill 491 further specifies that a treasurer will not be strictly liable where the treasurer relied on on the accuracy of district non-financial information or data, including: (1) EMIS reports; (2) pupil transportation reports; and (3) licensure or other credentialing information; again, unless the loss results from the treasurer's negligence or other wrongful act.

Moreover, under current law, a school district or ESC treasurer may pay a teacher for services only after the teacher files with the treasurer: (1) all required reports ; and (2) a written statement from the superintendent that the teacher has filed with the treasurer a valid educator license to teach the subjects or grades to which the teacher is assigned. House Bill 491 makes each teacher's payments contingent upon a written statement from the superintendent or a designee that the teacher has filed with the superintendent or designee (and not the treasurer) the required reports and the valid educator license. The bill also expressly requires each teacher to file the reports and license.

A treasurer who makes any payment in compliance with this new procedure cannot be held liable for a loss of public funds, unless the loss results from the treasurer's own negligence or other wrongful act. This protection also extends to the superintendent or designee, unless the loss results from his or her own negligence or wrongful act.

The law becomes effective 90 days after filing with the Ohio Secretary of State. Moreover, the law will apply to any matter involving a school treasurer that, as of the law’s effective date, has not been resolved through all available appeals.

Lindsay Gingo Named to List of “Rising Stars” in 2018 Edition of Ohio Super Lawyers

Lindsay F. Gingo has been selected to the 2018 Ohio Rising Stars list for the seventh year in a row. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Lawsuits Filed in Ohio to Enforce the Supreme Court’s Janus Ruling

On the heels of the U.S. Supreme Court’s decision in Janus v. AFSCME, which disallowed public-sector unions from extracting agency fees from non-consenting employees, two class-action lawsuits were filed in federal court in Ohio. 

Nathaniel Ogle, an employee of the Ohio Department of Taxation, filed the first suit, Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11, Case No. 2:18-CV-1227.  He did not agree to be a member of the Ohio Civil Service Employees Association/AFSCME Local 11 (and was never a member) but was still charged agency fees for union representation.  He is asking the court to require his union to refund the fees, with interest, that were unconstitutionally extracted from his paycheck.  Although not entirely clear at this early stage of the lawsuit, Ogle may be making a case that he is owed a refund for deductions he believes were unconstitutional even before Janus was decided in June 2018.  He is also asking the court to declare unconstitutional the Ohio statute that requires employees to pay fair share fees as a condition of employment and to permanently enjoin his union from requiring nonmembers to pay union dues without their consent.

 The second suit was filed by a group of individuals employed by various state and local Ohio government agencies, also claiming violations under the new ruling outlined in Janus.  In Smith v. ASFCME Council 8, Case No. 2:18-CV-1226, seven government employees resigned their membership from their union after Janus was decided, but their union continued to deduct dues.  The union claims that its policy requires an employee seeking to change his or her dues deduction to do so with a 15-day period before the new collective bargaining agreement takes effect.  The plaintiffs are asking the court to declare the union’s resignation policy unconstitutional and are seeking an injunction to stop the union from collecting the agency fees from non-consenting employees.

These cases are two of many filed nationwide by the National Right to Work Foundation on behalf of public employees after the Janus decision.  The results of these suits, as well as those filed in other states, will provide guidance about the true impact of the Supreme Court’s decision in Janus.   

New Law Establishes Rules for Use of Credit Cards and Debit Cards by Political Subdivisions, Including Public Schools

Substitute House Bill 312 regulates the use of credit cards and debit cards by school districts and other political subdivisions. School districts must now adopt a credit card account policy before obtaining a credit card account. If a school district has an active credit card account on or before November 2, 2018, the district must adopt a credit card account policy by February 2, 2019. The policy must include provisions addressing each of the following items:

• The officers or positions authorized to use the credit card account;

• The types of expenses for which the account may be used;

• The procedure for acquiring, using, and managing the credit card account and presentation instruments related to it, such as physical credit cards and checks;

• The procedure for submitting itemized receipts to the treasurer or treasurer’s designee;

• The procedure for issuing, reissuing, and canceling a credit card and the process for reporting lost or stolen credit cards;

• The account's maximum credit limit; and

• The actions or omissions by an officer or employee that qualify as misuse of a credit card.

The school district’s name must also appear on each credit card and every check related to the credit card account.

If the school district treasurer does not retain general possession and control of the credit card account or physical cards or checks, the board must appoint a compliance officer tasked with reviewing officer and employee use of credit card accounts under the school district’s policy. The compliance officer must review the following items at least every six months: (a) the number of cards and accounts issued, (b) the number of active cards and accounts issued, (c) the cards' and accounts' expiration dates, and (d) the cards' and accounts' credit limits.

The compliance officer cannot be the school district’s treasurer but could be the superintendent. The compliance officer, unless it is the superintendent, cannot use the credit card account or authorize officers or employees to use it. If the superintendent, while serving as compliance officer, uses the credit card account, the treasurer (or treasurer’s designee) on a monthly basis must review the credit card account transaction detail and sign an attestation stating the treasurer/designee reviewed the credit card account transaction detail.

The treasurer must also file a report with the board detailing all rewards earned through the use of the credit card account.

The use of a credit card account by an officer or employee for expenses beyond those authorized by the board constitutes the criminal offense of misuse of a credit cards, which can result in a charge ranging from a misdemeanor to a felony.

A “credit card account” includes any bank-issued, store-issued, financial institution-issued, financial depository-issued, or affinity credit card account. It also includes any other card account that allows holders to purchase goods or services on credit or to transact with the account, and any debit or gift card account related to the receipt of grant moneys. However, procurement card accounts and gasoline or telephone credit card accounts are specifically excluded.

HB 312 also includes important provisions related to debit cards. All political subdivisions, including school districts, are prohibited from holding or using debit card accounts unless for law enforcement purposes or a debit card account related to the receipt of grant money. A political subdivision that uses a debit card account for any other purpose is guilty of the crime of misuse of credit cards.

Schools should consult policy providers and legal counsel to ensure compliance with these changes.

Ohio Public School Deregulation Act Brings a Host of Important Changes For School Districts

Effective November 2, 2018, Senate Bill 216, referred to as the Ohio Public School Deregulation Act, impacts Ohio public schools in consequential ways, including teacher evaluations, state achievement assessments, and educator licensing and certification. Here is a brief summary of some of these changes:

Changes to OTES:

Beginning in the 2020-2021 school year, school districts must utilize the revised OTES framework that the State Board of Education is tasked with developing prior to May 1, 2020. Each school district must update its evaluation policies by July 1, 2020 to conform to the revised framework.

The State Board must make the following changes to the OTES framework:

• Eliminate the requirement that 50% of an evaluation consist of student academic growth;

• Require the use of at least two measures of “high quality student data” to evidence student learning attributable to the teacher being evaluated;

• Prohibit the shared attribution of student performance data among all teachers in a district, building, grade, content area, or other group;

• Prohibit the use of student learning objectives;

• Require development of a professional growth plan or improvement plan for the teacher that is: (a) based on the results of the evaluation, (b) aligned to any school district or building improvement plan required under federal law, and (c) guided by the state professional development standard;

• Permit schools to evaluate accomplished teachers once every three years, so long as the teacher submits a self-directed professional growth plan that focuses on specific areas in the observations and evaluation, and the evaluator determines the teacher is making progress on the plan; and

• Permit schools to evaluate skilled teachers once every two years, so long as the teacher and evaluator jointly develop a professional growth plan that focuses on specific areas in the observations and evaluation, and the evaluator determines the teacher is making progress on the plan.

The Department of Education has been tasked with defining “high quality student data” and providing guidance to school districts on how high-quality student data may be used as evidence of student learning attributable to a particular teacher.

Per SB 216, schools can also no longer use the alternative evaluation framework, in which each teacher evaluation was measured by 50% teacher performance, 35% student academic growth, and 15% of one or any combination of student surveys, teacher self-evaluations, peer review evaluations, and student portfolios.

SB 216 also removes the option for school boards to adopt a resolution requiring only one formal observation of an accomplished teacher if the teacher completes a project demonstrating growth. Therefore, during any year that any teacher is being evaluated, regardless of rating, an evaluator must conduct two formal observations of that teacher. During any year a teacher is not being evaluated due to the teacher's receipt of an "accomplished" or "skilled" rating, it is still the case that the evaluator must conduct at least one observation of, and hold at least one conference with, that teacher. SB 216 specifies that the conference must include a discussion of the teacher's progress on the teacher's professional growth plan.

The final date for school boards to adopt the State Board’s revised OTES framework is July 1, 2020.

Revisions Related to State Assessments:

Beginning with the 2019-2020 school year, schools may administer state achievement assessments in English language arts or math in paper format to third grade students. Schools must still administer the assessments online for students on IEPs or Section 504 plans for whom an online assessment is an appropriate accommodation.

Also beginning with the 2019-2020 school year, ODE will request each state assessment vendor provide an annual analysis of how questions on the assessments align with statewide academic content standards. This analysis will be provided to all schools. ODE must also request each vendor provide information and materials to assist schools with assessments, including practice assessments and other preparatory materials.

Reading improvement plans are required beginning with the 2019-2020 school year for school districts in which less than 80% of its students attain proficient scores on the third grade English language arts assessment. The board of education must approve the reading improvement plan prior to implementation. The current requirement that schools that fail to meet a specific level of achievement on reading-related measures, as reported on the past two consecutive state report cards, must submit a reading achievement improvement plan to the Department of Education remains unchanged.

Changes to Educator Licensing and Certification and Continuing Contracts:

SB 216 makes formal changes to how the State Board issues educator licenses. Rather than issuing licenses for “Early Childhood,” “Middle Childhood,” and “Adolescence to Young Adult’”, the State Board must now specify whether the educator is licensed to teach grades pre-K through 5, 4 through 9, or 7 through 12. The grade band provisions, however, do not apply to those: (1) licensed prior to SB 216’s effective date, (2) licensed to teach in certain prescribed subject areas (computer information science, bilingual education, dance, drama or theater, world languages, health, library or media, music, physical education, teaching English to speakers of other languages, career-technical education, and visual arts), (3) licensed as intervention specialists, or (4) with any other license that does not align to the grade band specifications.

SB 216 also prescribes new requirements for any substitute teaching licenses issued on or after July 1, 2019. After that date, all substitute teachers must have a post-secondary degree, yet the amount of time substitutes can provide substitute teaching is based on whether their post-secondary degree is related to the subject they are teaching. If the degree is in education or is directly related to the subject being taught, the substitute may teach for an unlimited number of days. If the degree is not directly related, the substitute may teach for only one semester at a time, subject to approval of the employing school district board.

Newly hired nonteaching school employees in non-civil service school districts must now be employed for seven years to be eligible for a continuing contract. Previously, such employees only had to have an initial (up to ) one-year contract and a single two-year contract to qualified for a continuing contract. Now, they must have an initial limited contract of not more than one year and three subsequent limited contracts of two years each before they may qualify for tenure.

Another important change from SB 216 is the replacement of the term “highly qualified” teachers with “properly certified or licensed.” Beginning July 1, 2019, school districts must employ teachers of core subject areas that are properly certified or licensed. Likewise, paraprofessionals may not be hired to provide support in core subject areas unless they are properly certified. “Core subject area” has been redefined as only reading and English language arts, math, science, social studies, foreign language, and fine arts. A “properly certified or licensed” teacher is one who has successfully completed all requirements for certification or licensure that apply to the subject areas and grade levels in which the teacher provides instruction. Similarly, a “properly certified paraprofessional” is defined as a paraprofessional who holds an educational aide permit and either:

1. Has a designation of “ESEA qualified” on the permit;

2. Has completed two years of coursework at an accredited higher education institution;

3. Holds an associate degree or higher from an accredited higher education institution; or

4. Meets a rigorous standard of quality as demonstrated by attainment of a qualifying score on an academic assessment specified by the Department of Education.

To ensure compliance with these new requirements, schools should contact legal counsel and policy providers with any questions.

New Law Brings Significant Change to SRO Training Rules and PreK-3 Discipline

Signed into law by Governor Kasich on August 3, 2018, Ohio House Bill 318 requires school districts to make significant changes in the area of school safety and discipline.  The law is effective on November 2, 2018. However, it is important to note there are phase-in components to the law regarding pre-K through three discipline, as described below.

School Resource Officers

The new law creates specific rules and requirements for school resource officers ("SROs").  Any SRO hired after the effective date of the law must complete a basic peace officer training program and, within one year of appointment, must complete at least 40 hours of specialized training.  The specialized training must address, among other things, skills and strategies specific to handling security at schools, being a positive role mode for youth, psychological and physiological characteristics of school-age students, de-escalation techniques and behavior management strategies, and identify the trends of drug use. 

SROs hired prior to the effective date of the law are exempt from the 40 hours of specialized training but are still required to complete a basic peace officer training program.  The law does not require schools to hire an SRO, but schools that wish to do so must enter into a detailed memorandum of understanding with the law enforcement agency clarifying the purpose of the SRO program, and the roles and expectations of the SRO and the district.  If a school district is already working with an SRO as of the effective date of the law, the memorandum of understanding must be entered into within one year of that date.

Interventions and Discipline

Next, the law requires schools to implement Positive Behavior Intervention and Supports (“PBIS”) - a multi-tiered, school-wide behavioral framework developed and implemented for the purpose of improving academic and social outcomes and increasing learning for all students.  The implementation of PBIS, as mandated by the law, makes significant changes to discipline rules, particularly for young students, and promotes PBIS in lieu of suspending or expelling those students for minor offenses. 

The specific PBIS-related changes include: requiring that students be permitted to complete classroom assignments missed during both in-school and out-of-school suspensions; requiring that any in-school suspension be served in a supervised learning environment; requiring the principal (whenever possible) to consult with a mental health professional under contract with the district prior to issuing an out-of-school suspension or expulsion for a student in any of grades pre-K through three; and ensuing that any zero tolerance policies for violence, disruptive, or inappropriate behavior comply with the PBIS provisions. 

The law also makes related changes to the process for emergency removal of students, such as requiring the hearing on the emergency removal to be held the next school day after the removal (rather than within three days); and limiting the time which a young student can be emergency removed to one school day.  Schools must also provide professional development on PBIS to teachers and administrators in buildings that serve students in grades pre-K through three within three years of the effective date of the law. 

The final major change related to PBIS is that schools are prohibited from issuing an out-of-school suspension or expulsion to a student in grades pre-K through three except for serious offenses or only as necessary to protect the immediate health and safety of the student, fellow classmates, classroom staff and teachers, or other school employees. 

However, it is important to note that the law also provides some transition relief for the prohibition on issuing an out-of-school suspension or expulsion to a student in grades pre-K through three except for serious offenses or only as necessary to protect the immediate health and safety of the student, fellow classmates, classroom staff and teachers, or other school employees.  This requirement is being phased in over the next four school years, with full implementation delayed until the beginning of the 2021-2022 school year.  Although the requirement is delayed, schools must begin reporting to ODE this fall about the out-of-school suspensions and expulsions for students grades pre-K through three, and categorizing the offenses.  Schools must then take steps to reduce the number of out-of-school suspensions and expulsions for minor offenses each school year, until the 2021-2022 school year when no such discipline can be meted out for minor offenses. 

The legislation was introduced in August 2017 by State Representatives John Patterson, D-Jefferson, a former teacher; and Sarah LaTourette, R-Chesterland.

State Senate Education Committee Chair, Peggy Lehner, said “[r]esearch is pretty clear that one of the factors contributing to the achievement gap is the considerable amount of time that struggling students spend out of the classroom.  Already academically behind, suspensions only push them further and further behind.”  Ohio schools suspend approximately 35,000 students in grades pre-K through three each year.  Lehner says that only 5-8% of such suspension are for violent behavior.

Schools should consult policy providers and legal counsel to ensure compliance with this law moving forward.

Lindsay Gingo Law, LLC Welcomes Attorney Sarah Kutscher

Lindsay Gingo Law, LLC is pleased to announce that Sarah Kutscher has joined the firm in an Of Counsel role beginning this 2018-2019 school year.  Sarah has dedicated her career to education law, and brings with her significant experience in supporting districts in all aspects of special education, including providing guidance on state and federal laws, consulting on school boards’ obligations regarding the identification and evaluation of students with disabilities, and developing Individualized Education Programs (IEPs) and Section 504 Plans.

Sarah shared that "I am thrilled to be joining Lindsay Gingo Law! By aligning our efforts, we will continue to provide high-level and individualized counsel to our clients."  Likewise, the firm is absolutely thrilled to have Sarah.

In addition to special education, Sarah's practice spans the entire scope of school law.  This includes, for example, labor and employment matters, student rights and discipline, and school finance.  She also has experience with administrative level hearings and cases filed with the Ohio Department of Education; the U.S. Department of Education, Office for Civil Rights; the Equal Employment Opportunity Commission; and the Ohio Civil Rights Commission.  Sarah has successfully litigated cases in both state and federal court in employment, civil rights, residency, and school finance matters.  She also clerked with the U.S. District Court for the Northern District of Ohio.  

Sarah received her J.D., magna cum laude, from DePaul University College of Law, and her undergraduate degree from Northwestern University, cum laude.

Lindsay Gingo Law, LLC provides comprehensive education law guidance based on the unique needs of its client school districts, recognizing that a one-size-fits-all approach is not compatible with today's complex PreK-12 structure.   With an understanding of small-firm and large-firm models, the firm provides districts with "in-house" professional services that foster a close attorney-client relationship rooted in trust and confidence.

Supreme Court Bans Mandatory Union Fees for Public-Sector Workers

In a much anticipated case, the U.S. Supreme Court in Janus v. AFSCME Council 31 overturned 40 years of precedent by ruling that mandatory public-sector union dues are unconstitutional.

In a 5-4 vote issued today, the majority held that states and public-sector unions may no longer require workers to pay agency fees. "Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay," Justice Samuel Alito Jr. wrote for the majority.

In dissent, Justice Elena Kagan said the decision will have far-reaching consequences. "Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces," she wrote.

This decision overturns the 40-year-old Abood v. Detroit Bd. of Educ., which allowed collecting agency fees from all unit employees to cover costs related to collective bargaining, contract administration, and grievances, but not the union’s political and ideological projects. 431 U.S. 209 (1977).

As a result, effective immediately, fair share fees may no longer be lawfully collected from public sector employees. Agency fee arrangements that have been negotiated in a collective bargaining agreement must cease immediately. This Supreme Court decision takes precedence over any contractual bargaining language.  Schools are also receiving alerts on this from the Ohio Education Association and other public sector unions.  

Schools should continue to collect dues from current union members.   Members looking to make changes to their membership would follow any standard procedures regarding withdrawal from the union.

Ohio School Security Tax Levy Dollars Can Be Used for Mental Health Treatment

An existing Ohio law permits a school district to levy a property tax exclusively for school safety and security purposes. Ohio House Bill 24 - signed by Governor Kasich on March 30, 2018 - newly defines "school safety and security" to include, without limitation:

1.  Funding permanent improvements to provide or enhance security;

2.  Employing or contracting with safety personnel;

3.  Providing mental health services and counseling; or

4. Providing training in safety and security practices and responses.

Prior to House Bill 24, the law did not specify what types of expenditures fit into the category of "safety and security."  The above list provides specific purposes for the expenditures, but again, it is a non-exclusive list.  Boards may use the tax levy dollars for other safety and security measures, as determined by the school board at its reasonable discretion.  

The inclusion of mental health services and counseling in the bill was the result of a last-minute amendment, added in the wake of the Parkland, Fla. school shootings with the hope of encouraging boards of education to utilize this levy option in the law.

Surveillance Videos: Guidance on Handling Parent Records Requests

Parents sometimes request to see surveillance video footage containing multiple students' images, when that footage is the basis for their own child's discipline at school.  But is disclosing that video footage to one parent, unlawfully revealing personally identifiable information about other students depicted in the video? It is a grey area in the law because of the competing rights of the parties involved.

The U.S. Department of Education, Family Policy Compliance Office ("Office"),  published a guidance document (Letter to Wachter), offering the Office's framework for responding to such a request.  In that case the question involved surveillance video of a hazing incident involving multiple victims, perpetrators, and bystanders who were shown in the video footage.

The Office examined whether the surveillance video was an education record for the students involved, and whether the District was permitted to release the video to an individual parent of an involved student with or without the other parents' consent.  The Office likewise examined whether written statements about the hazing incident were education records and subject to disclosure with or without the other parents' consent.

The Office explained that generally, the Family Educational Rights and Privacy Act ("FERPA") is the federal law that protects the privacy of students' education records and the personally identifiable information contained in those records, including generally requiring parental consent prior to disclosure.   The Office further explained that FERPA does not provide a blanket right to copies, but a right to access.  FERPA further provides that when education records contain information related to more than one student, a parent may inspect and review or "be informed of" only the specific information about his or her own child.  According to the Office, only when the information about another student cannot be segregated and redacted without destroying its meaning may personally identifiable information about another student be disclosed without consent.

In light of this guidance, the Office found that the video and witness statements were education records for the perpetrators and victims, but not for the bystanders.  Further, the parents of the alleged perpetrator had the right under FERPA to inspect and review information in the video and witness statements that were about the alleged perpetrator, even though they also contained information that was directly related to other students.  This was lawful so long as the information in the records could not be segregated and redacted without destroying its meaning.

Thus, the Office directed the school district to review the video and witness statements to determine whether any personally identifiable student information could be redacted prior to disclosure.   Because the school district at issue did not have and could not afford software to blur the video, the likely result would be allowing parents to view the videotape, but not provide a copy (unless copies were necessary to provide access).  With regard to the witness statements, likely some redaction could be done (e.g., redacting student witness names) prior to disclosure.

In Ohio, FERPA applies to school districts along with numerous other laws governing records.  Schools are well advised to utilize this Family Policy Compliance Office's letter as guidance, but seek additional legal review, as the disclosure of student information is a fact-specific inquiry.