“Waiving” the Flag for the Resumption of Summer Activities

Most school years, students and staff cannot wait to get out of the building on the last day of school.  This year is different.  As we wrap up the academic year, students and staff are clamoring to be allowed back into school buildings.  Now politicians and public health officials are beginning to relax the closures mandated by COVID-19.  Last week, the Governor announced that schools may open weight rooms, gyms, and outside facilities for strength and conditioning programs.  That is in addition to baseball/softball fields and events, with restrictions, beginning June 1.  The Nebraska School Activities Association followed up with the release of its guidance on reopening these facilities to allow students to participate in summer conditioning.  And this past Monday the Commissioner of Education announced that the Nebraska Department of Education will have guidance for in-person summer learning posted on its Launch Nebraska website, which could occur as early as June 8.  

Schools are not required to open their facilities for in-person activities.  Each board of education, in consultation with their administrative teams, will have to decide whether to open up their district’s facilities.  One factor that educators are considering is a waiver protocol.  In fact, ALICAP and other insurance carriers are advising schools that it is required that families who wish to have their students participate in events occurring in the school building execute a waiver.  

While we are as excited as you are to resume in-person activities at school, we are a bit cautious about relying too heavily on waivers.  Nebraska courts have narrowly interpreted both the effectiveness and enforceability of general liability releases and waivers.  As you are considering whether to open your facilities to baseball, softball, summer conditioning or any form of academic work, you should not assume that a waiver will preclude families’ claims against the district.  

Now that does not mean that we think waivers are a bad idea.  We are advising our clients to secure signed waivers from families before students participate in activities at school this summer.  It does mean that the wording of those waivers is important and that they need to be as specific as possible.  It also means that school officials should be sure they understand that a waiver is not a way to be “golden” in winning or avoiding a lawsuit.  Instead, that waiver and release will be one piece of evidence that the school can use if you are sued.  We have provided these waivers to clients who have requested them.  We will continue to update the form of those waivers as schools are allowed to expand the activities allowed on their premises.  This means that families may grumble about being required to sign multiple waivers as the summer progresses.  Please do understand that this isn’t lawyers writing legalese because we love it (we actually don’t).  But the importance of waivers and releases being clear and specific may mean that we need to secure signatures from parents through each step of our gradual reopening.  

For now, if your school district is going to open its buildings on June 1 for conditioning or June 8 for summer instruction, you should contact your school attorney to secure the appropriate release.  If you have questions about potential liability for summer activities, contact your school attorney or contact us at KSB (ksb@ksbschoollaw.com).

KSB HAPPENINGS - MARK YOUR CALENDAR

As Nebraska schools prepare to wind up the 2019-20 school year, educators are already preparing for the 2020-21 school year -- whatever that may look like.  We wanted to let you know KSB’s plans for policy updates, handbooks, Title IX, and other preparation work for next school year.  So open up your calendars, we’ve got some entries for you to fill in! 

MAY 29, 2020 - POLICY UPDATE NO. 1

Based on the delay of the Unicameral session, we will have to send out two sets of policy updates this year.  (We know, we know….)  If you are a KSB Policy Service Subscriber or if you subscribe to our updates, you will receive your first set of updates on May 29, 2020.  Our handbook updates for student, staff, and activities will be released after the policy updates are completed.

JUNE 1, 2020 - 10:00 AM 2020 POLICY UPDATE WEBINAR

Like past years, we will be conducting a ZOOM webinar to review and discuss the policy changes and answer questions you may have about them.  You are welcome to ask other administrators or board members from your district or ESU to sit in on the webinar if you'd like.  There is no limit of attendees from each district or ESU.  The webinar again will be recorded and posted to the website for subscribers if you are not able to attend.

JUNE 3, 2020 - TITLE IX WEBINAR

On Wednesday, May 8, 2020, the U.S. Department of Education released the final rule containing changes to the Title IX regulations.  We will be holding our initial Title IX webinar on June 3, 2020, 9:00-12:00 CDT.  The regulations are set to become effective on August 14, 2020.   We plan to cover the following:  Overview of the changes in the new regulations; the new definitions for what is covered by Title IX; the new Title IX grievance process and how it will (or won’t) align with student discipline and special education laws, given the fact that it will take several weeks to complete; Board policy decisions and changes you will need to make; administrative processes and decisions you will need to make about receiving, investigating, and deciding Title IX complaints; planning policy updates, handbook updates; and more advanced training for your full staff and staff members who will serve roles in the new grievance process.

If you would like to register, click here.  

SRO TRAINING - GOING VIRTUAL

KSB School Law had planned to host SRO/administrator training on June 1-2, 2020 to satisfy the requirements of LB 390 (2019).  LB 390 requires assigned school resource officers and school security guards to attend a minimum of 20 hours of training focused on school-based law enforcement. In addition, LB390 requires a minimum of one administrator in each elementary or secondary school where a school resource officer or security guard is assigned to attend a minimum of 20 hours of training focused on school-based law enforcement. This training must be included as part of the memorandum or agreement you have in place between your school and law enforcement entity you work with by January 1, 2021.

LB 390 requires the training to include at least the following: school law, student rights, understanding special needs students and students with disabilities, conflict de-escalation techniques, ethics for SROs, teenage brain development, adolescent behavior, implicit bias training, diversity and cultural awareness, trauma-informed responses, and preventing violence in school settings.

We are in the process of producing this training digitally, in a slightly different format than we had planned prior to COVID-19.  We will have more information next week with the first training segments available starting on July 1, 2020.  We are setting up a site where you will be able to register, complete the training, and print your certificate upon completion of the 20 required hours.

POLICY UPDATE NO. 2

Like you, we’ve heard that the Unicameral isn’t ruling out resuming in June, but later in the summer (if not the fall) is more likely.  There are several bills that have been passed and signed that will require policy changes, handbook changes, or at least consideration from schools and ESUs.  There could be additional bills that are passed during the resumed session.  And, it’s anyone’s guess what issues may be undertaken as a result of COVID-19. 

Once the session concludes, we will complete additional required policy and handbook changes at that time.  The main reason for waiting is that bills without emergency clauses don’t become effective until 3 months after the session adjourns.  Even if the session resumed tomorrow and finished in early June, those bills wouldn’t become effective until September.  We do not want to ask you to implement policies with delayed start dates or confuse your board members about what is required, and when.  Speaking of which...

TITLE IX POLICY UPDATE and ADVANCED TRAINING

If the new Title IX regulations are implemented as they were released last week, you will have many difficult legal and practical decisions to make, to be sure.  You will need to update policies, handbooks, nondiscrimination notices, forms, and more.  We blogged about a brief summary last week, which you can read here.  You should share at least these preliminary items with your administrative staff.

We are working on reviewing all of the information released by the USDOE (all 2,100 pages worth) and working on policy and other changes now.  However, we are trying to balance several things: the likelihood that Congressional action or lawsuits will be filed to stop implementation of the new regulations; the difficult decisions administrators and boards will need to make after understanding these new obligations; the need to get policies and handbooks updated to be printed and/or prepared for release by July and August; the need to train staff on those policies, specifically; the need to train administrators who will implement the new procedures; and many other considerations.  

We hope to have draft policy updates on Title IX to review during our webinars in early June, but we fear putting out updated policies too early.  We’re continuing to analyze the best route here, and we’ll keep you posted.

As that timeline becomes more clear, we will also offer more specific suggestions and training for categories of employees who will need it.  For example, all of your classified staff will need more detailed training, but that training will be much different than the training your investigators, decision makers, and Title IX Coordinators will need.  We don’t think the new regulations will lend themselves to a one-size-fits-all training heading into the school year.

2020-2021 COVID Legal Considerations

Once we get through required or prudent policy updates “as usual” for the year, we also plan to dedicate some time to review NDE’s current guidance (including the Launch Nebraska website) and their response to the Rule 62 petition submitted by ESUCC.  We plan to review aspects of our policies and handbooks you may want to review as 20-21 gets closer.  We also plan to consider the special education and other considerations you can be thinking of this summer to make life and processes easier as you plan for school reopening--whatever that looks like this fall.  We’ll tailor dissemination of that information in a way that makes sense to help our awesome clients.

Take Your Compliance to the IX’s -- KSB’s (rescheduled) Webinar covering the New Title IX Regulations

When: Wednesday, June 3, 2020 - 9:00-12:00 CDT

Where: ZOOM  - Register HERE 

What: New Title IX Regulations

On Wednesday, May 8, 2020 the U.S. Department of Education released the final rule containing changes to the Title IX regulations.  The regulations are set to become effective on August 14, 2020.  As you know our webinar was originally scheduled for March 24, 2020.  Due to the pandemic and also because the new regulations were not out, we postponed that webinar.  If you were previously signed up, we have your registration.  Just put the new date on your calendar.  If you would like to register, click here.  

We plan to cover the following information:

• Overview of the changes in the new regulations.

• The new definitions for what is covered by Title IX.

• The new Title IX grievance process and how it will align with student discipline and special education laws, given the fact that it will take several weeks to complete.

• Board policy decisions and changes you will have to make.

• Administrative processes and decisions you will have to make about receiving, investigating, and deciding Title IX complaints.

• Planning policy updates, handbook updates, and more advanced training for your full staff and staff members who will serve roles in the new grievance process.

New Title IX Regulations (FINALLY!) Released: A Taste of the Bitter and the Sweet

At long last, on Wednesday the U.S. Department of Education released the final rule containing changes to the Title IX regulations.  The regulations are set to become effective on August 14, 2020, right as we’ll be reopening (maybe?) school for the 20-21 year.  

You can see the news release and read all of the summary documents and the full final rule by clicking here.  If you didn’t know this process has been in the works since November 2018, why did you pick the middle of a pandemic to come out from under your rock?!  After 18 months of work on the new regs, in addition to a 1-hour YouTube video there are about 2,100 pages of rules, summaries, and guidance.  

All of this will ultimately be boiled down into about 40 pages of actual regulations, then interpreting how best to implement them and what they require.  We don’t have great answers yet.  At KSB we try very hard to get our clients the information they need without causing unnecessary panic or creating work for you when it might not be needed just to rush to market.  COVID-19 has proven an interesting test of that philosophy, and in our opinion these Title IX regulations will require the same deliberation for legal and practical reasons.  Plus, no one has read all 2,100 pages since Wednesday!

To be clear, if these regulations are implemented as released they will take a lot of work from lawyers and administrators both prior to August 14 and once they are in effect.  They will require substantial changes to policies and handbooks.  They will require significant training for all staff.  They will require several administrative staffing and duty assignment decisions.  They will create practical problems that will be tough to solve without collaboration, especially for smaller schools.  We’ll cover all of that in the coming days, weeks, and months leading up to August 14.  For now, our advice is to stop and take a deep breath (at least 6 feet away from anyone else).  You’ve got plenty to tackle right now.

We also need to see if these regulations actually become effective on  August 14.  As we type, there are dozens of attorneys, advocacy groups, and legislators preparing lawsuits and political strategies to stop the implementation of these regulations.  We’ve been digging into the regulations since they were released, but we know 3 months is an eternity in politics and federal court lawsuits--especially during a pandemic.  It may be that the effective date is ultimately put on hold by federal court injunctions or Congressional action.  We’ll see.  Part of our assessment for rolling out policies, training, and other guidance will include tracking these developments closely.  Anyone remember the FLSA regulation saga from a few years back when you all amended your classified staff contracts for salaried employees and then that Texas judge stopped them cold a few days before they became effective?  Yeah, us, too...

For now, here is a quick recap of some of the high and low points in the new regulations, and some key questions we’re digging into:

1. The regulations narrow the definition of “sexual harassment” and formally adopt the “deliberate indifference” standard.  These changes are more in line with federal judicial decisions than with past OCR enforcement positions.  Since most Title IX issues are handled through OCR and not litigation for our clients, this will be an important change.

2. The regulations appear to make “any employee of an elementary or secondary school” someone who can trigger the school’s Title IX obligations.  This is a huge change from the previous regulations which limited “responsible employees” to those with authority to take corrective action.  Arguably, every school employee now needs much more substantial Title IX training.

3. The regulations clarify that the Title IX Coordinator must provide non-disciplinary “supportive measures” (formerly called “interim measures”) and must have the authority to implement “corrective measures,” including discipline, as part of the process.  The supportive measures must be made available to both parties and “may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.”  In some circumstances, these measures will contradict a student’s IEP or 504 plan in ways that will likely require even more team meetings for students with disabilities involved in the new Title IX processes. 

4. The new Title IX “grievance process” will require at least 3 people: a Title IX Coordinator (who must be an employee), an investigator, and a decisionmaker--all of whom must be different people. Then, both the victim and the accused must be afforded an “appeal procedure,” so that’s probably the superintendent (or the school board) who will hear the appeal and arguably shouldn’t be part of the initial grievance process.  That’s not to mention meeting the requirements of state student discipline laws.  In Nebraska, for example, the Student Discipline Act process could take at least one principal, an impartial hearing officer, and the superintendent.  So, there’s at least an argument that the Title IX grievance process combined with the student discipline process may require a minimum of 4-5 but as many as 8 different people to accomplish the due process and impartiality requirements of the laws.  One of our priorities at KSB is figuring out practical steps that schools with fewer than 8 administrators can take to comply with these requirements. 

5. The new Title IX investigation and decision making process also requires very specific timelines and steps.  The accused party must be given notice of the complaint and “sufficient details” along with “sufficient time” to prepare for the initial investigative interview.  After an investigation is complete, both parties and their representatives must be given electronic or paper copies of all evidence, and they have 10 days to review and respond to it.  The investigator then compiles an investigative report, which is given to both parties.  Once the investigative report is complete but prior to any final determination, the parties have another 10 days to respond to the investigative report, including the ability for the parties to ask written cross-examination questions to the other party.  How is that going to work with a couple elementary school students?  After all this, the decision-maker then compiles the final decision, which is shared with both parties, and the appeal process begins.  

6. By our count the new regulations require a minimum 23 days to complete the Title IX investigation and decision making processes.   This will be very difficult to square with the procedural requirements in student discipline laws, the IDEA, Section 504, and others.  That’s not to mention trying to pull off all of these processes given accessibility concerns for students and parents, in terms of age, disabilities, language barriers, and others.

We will continue to review the regulations and plan to provide more thoughts on how they will affect your policy and training schedules soon.  For KSB Policy Service subscribers, we are working on policy updates throughout May.  With the disruption to the operations of the Unicameral and Congress and now these new Title IX regulations, we are working on the best way to structure policy and handbook updates this year to reduce your workload.  More on that to come, as well.  For now, if you have any questions about the new Title IX regulations or want to talk about tentatively scheduling training and things like that, contact your school attorney or contact us at KSB (ksb@ksbschoollaw.com)!

Pomp and Circumstan- er Coronavirus Don’t forget Special Education, Section 504 and ADA Accessibility Issues In Planning Your COVID-19 Graduation Ceremonies

Even with the current easing of Nebraska’s statewide directed health measures in many counties, area health departments, the Governor’s office and Education Commissioner Matt Blomstedt continue to warn against Nebraska school districts holding in-person graduation ceremonies.  Nebraska school districts are showing off their diversity and creativity in planning how to honor their graduating seniors in light of the COVID-19 school closures across the state.  Some schools are holding virtual graduation ceremonies, some are doing a form of a “drive through” commencement, and still others have scheduled ceremonies to occur later this summer.  Regardless of the format of your graduation ceremony, educators should be mindful of the implications that these new plans could have for special education students.  Public schools also need to be sure that all graduation events are accessible to students, parents and members of the public who may have a disability.  

Graduation and Special Education 

Regardless of the format of your graduation ceremony, the TIMING of the end of your school year will be significant as it relates to the services a special education student receives.  Most IEP teams use their school district’s school calendar as the baseline for services that will be provided to special education students.  The problem is that the COVID-19 outbreak has wreaked havoc on everyone’s planned spring schedule.  This will affect your special education differently based on what your school is doing with its 2019-20 calendar. 

Graduating seniors who have individualized education programs are entitled to all of the procedural safeguards that normally apply under the IDEA, even during COVID-19 closures.  Graduation from high school with a regular high school diploma or aging out of special education constitutes a change in placement, which triggers the procedural safeguards of the IDEA.  At a minimum each of these students should receive prior written notice of the change in placement.  Additionally, regardless of whether the student's IDEA eligibility is terminating due to age or graduation with a regular diploma, the district must provide the student with a summary of his or her  academic achievement and functional performance, which must include recommendations on how to assist the student in meeting his postsecondary goals.

For non-graduating special education students, school districts face less paperwork but more options.  

Schools that are not providing any education--and instead are only providing enrichment--should discontinue providing enrichment to special education students at the same time they discontinue providing enrichment to general education students. 

Schools that are providing FAPE-implicating educational services and that will continue to serve students through the original date set as the end of your 2019-20 school year should simply continue to serve special education students to the end of the year. 

Schools that are ending their school year early will need to refer to each student’s IEP.  If the IEP says that services will be provided through a specific date, the safest thing to do is to provide services to that date even if you have “ended” the school year early for general education students in light of COVID-19.  On the other hand, if the IEP says that services will “follow the school calendar,” education leaders will have to decide whether to end special education services when the school year ends for general education students or whether to continue services through the date that the school calendar originally set as the end of the 2019-20 school year.    

Accessibility to Graduation Ceremonies

Most school districts do a good job of thinking about physical or architectural barriers that may exist in their traditional in-person graduations. However, shifting the festivities online or to a different physical location means schools will need to ensure their ceremonies are accessible to individuals with hearing impairments, visual impairments, or other disabilities that might affect participation.  Representatives of your school district should reach out to the families of individuals with known disabilities so they can identify and address accessibility concerns in advance.  Districts should also run through the modified ceremonies ahead of time, with an eye toward identifying and addressing any accessibility concerns.

For online ceremonies, school district staff should be sure to accommodate individuals with hearing or visual impairments.  Schools should consider providing a sign language interpreter or closed captioning for those with hearing impairments.  Ideally, all images will have meaningful labels for visually-impaired individuals who rely on screen readers. At a minimum, each school district should post a notice on its website containing the name and contact information for a person to contact should an individual have difficulty accessing or participating in the graduation ceremony.

Drive-through ceremonies should also be thoughtfully designed.  If a student or parent doesn’t drive, the district should consider providing a driver.  Similarly, if the student has a mobility impairment that would require specialized transportation, the district will likely have to provide both an accessible vehicle and driver.  

Conclusion

These are just a few of the many details that should be considered when planning for improvised or rescheduled plans to honor seniors and how you plan to end your school year.  There are certainly a lot of logistics to consider in terms of finding an appropriate ceremony that fits your school and your community.  However, these ceremonies and alternatives have legal consequences that make it worth thinking them through ahead of time.  As you make plans for what you will do in lieu of your traditional graduation, including when it will occur, we recommend that you contact your school attorney, or contact Karen, Steve, Bobby, Coady, or Jordan at ksb@ksbschoollaw.com or (402) 804-8000.

“You Can Check Out Anytime You Like, But You Can Never Leave;” Winding Up the 2019-20 School Year for Special Education Staff and Students

As the 2019-20 school year lurches toward its end, special educators are turning their attention to the next steps for their students: end of year progress reports and extended school year services.  As with almost every other aspect of educators’ lives during the COVID-19 pandemic, these things will look different this year.    

Progress Reports

School districts are required to provide written information to parents about their students’ progress toward IEP goals and objectives.  The federal regulations merely say that these reports must be “periodic.”  Section 007.07A4 of Rule 51 does not provide any additional requirements beyond the federal regulation.  While this gives school districts a lot of flexibility, special educators are uncertain how to report progress during the closure of school buildings to in-person student instruction statewide.  So, what follows is a step-by-step guide on how to prepare special education progress reports during a global pandemic (and, actually, at any other time as well!).

Step 1: Check the IEP

The IDEA does not technically require that schools issue progress reports -- it requires that each IEP identify when progress reports will be sent.  In Nebraska’s Student Records System program, your obligation to report student progress is nestled underneath each annual goal in a student’s IEP.  Every case manager should start by checking every single student’s IEP to see what the team has promised the family. 

Step 2: Determine if You Have the Data To Report Progress

IEP teams are not required to identify the specific metrics that the school will use to report a student’s progress.  But if the IEP says that you will report on a specific assessment, you have to use it.  For example, many IEPs for students with specific learning disabilities in reading or math state that they will use MAP testing to assess a student’s growth in those content areas.  Since schools will be unable to administer MAP testing, you will need to note in the progress report that the district is unable to report progress using that metric.  Although school attorneys are not big fans of identifying educational methodology in IEPs (for reasons like those we face here), if the IEP team promised to measure progress using a specific methodology or metric, we are obligated to report on the progress using that metric, not substituting our own.  

A quick case reference here will be helpful.  In Seattle Sch. Dist., 113 LRP 19336 (SEA WA 4/03/13), the student’s IEP stated that he would be able to spell 3 of 5 third-grade level words correctly.  When the goal was written, the student was entering third grade but was only spelling at a first grade level.  The resource teacher moved the student through the second grade spelling curriculum and reported on progress reports that the student “was spelling second grade words with 60% accuracy.”  The parents placed the student in a private school and sued for tuition reimbursement arguing, among other things, that this progress report was meaningless because it did not use the benchmark set by the IEP.  The hearing officer agreed.  “The progress report contains no measurement of the goal, which was to spell three out of five words correctly at the third-grade level on the Brigance. There is no evidence whether the Student was by now able to spell zero, one, or two words out of five correctly at the third-grade level. …  Perhaps the Brigance does provide information on how well a student does on a level above his own. The progress report's comment on weekly spelling tests does not tell us this, either.”

The lesson from Seattle and cases like it is that you MUST use the benchmarks set by the IEP document.  If you cannot measure a student’s progress using the tools identified in the IEP because of the COVID-19 closures, you should candidly report that.  You can then then include any other information that would shed light on a student’s progress in the comments section of the progress report.      

Step 3: Remember Transition Goals for Students 16 Years of Age or Older

Neither the IDEA nor Rule 51 require LEAs to report progress that students are making on transition goals.  However, the federal Office of Special Education Programs has issued guidance that requires schools to report specifically in transition goals.  In Letter to Pugh, 117 LRP 3733 (OSEP 1/18/17), OSEP reasoned that a student’s transition goals will necessarily include academic and functional goals, and that a student’s progress in those goals must be reported.  This could prove particularly challenging with life skills goals that may require practice and modeling -- tasks like doing laundry and grocery shopping.  If you provided the student’s family with guidance on how to assist students in learning these skills, be sure to solicit their input on how the student is doing in meeting those goals.  However, these students may need to be marked as making incomplete progress until we can work with them in person after schools reopen. 

Step 4: Use the Data You Do have to Articulate Progress

The IDEA does not require you to ensure that a student will make adequate progress toward his/her annual goals.  Instead it requires school districts to design IEPs with appropriately ambitious goals and to implement those IEPs with fidelity.  The U.S. Supreme Court stated in Endrew F. that students with disabilities are entitled to educational goals which are “appropriately ambitious in light of the child’s circumstances.”  Every school child’s circumstances currently include living through a global pandemic, and that will necessarily have an effect on students’ educational achievement, regardless of whether or not they have a disability.  

Special educators should accurately report a student’s progress toward the goals which were developed prior to the school closures, and be candid if a student has not progressed as we would have hoped during the closures.

An Example 

An example might be useful at this point.  Let’s say that a student’s IEP has the following life skill goal:

In 36 academic school weeks, Student will learn how to go to a restaurant, place an order and calculate how much money to give the cashier after being told what she owes.  

The goal’s short term objectives include:

• Student will be able to read a menu up to a given dollar amount with 80% accuracy 4 out of 5 attempts

• Student will be able to make eye contact and engage in appropriate social interaction with restaurant staff with 80% success in 4 out of 5 attempts.

• Student will provide cash payment to restaurant staff in appropriate increments above the total (e.g. payment with a $20 bill for a charge of $16.75) with 80% success in 4 out of 5 attempts.

Obviously, this student will not be able to practice all of these skills during a COVID-19 closure.  If the student has been able to practice reading a menu, the district can report on that.  However, the student simply cannot practice the second and third benchmarks during closure.  The progress report should report “progress made, goal not met.”  For the prompt, “Progress sufficient to meet goal by end of IEP year,” the answer is probably “no.”  

Then in the comments the school can write something like, 

“Due to the statewide directed health measure necessitated by the global COVID-19 pandemic, school district staff were prohibited from in-person instruction of all students, including Student.  Therefore she was unable to practice the second two benchmarks under this goal.  Instead, district staff assisted Student in learning how to access online menus and how to calculate what she would have to pay if she did order a meal online.  Student was successful in reading an on-line menu and selecting her preferred meal in 5 out of 5 attempts.  Student was able to successfully estimate whether her total for a meal order was more or less than an identified amount in 3 out of 5 attempts.  Student will have the opportunity to practice and master the remaining skills under this goal after the school district reopens for in-person student instruction.”  

We have had several KSB clients ask us to draft stock wording that they can place into progress reports to document the COVID-19 closures.  That wording will be different depending on whether the school offered FAPE-implicating education, enrichment or closed completely.  As with many of the forms we have drafted during the COVID-19 closures, we believe that these forms are “legal advice” that schools should secure from their legal counsel.  If you are a KSB client who would like to see these samples, please e-mail Shari at shari@ksbschoollaw.com and she will send them to you (we are charging a flat $150 for these forms).  We cannot emphasize enough, however, that progress reports will have to be individualized based on the student, the IEP and the way the continuity of learning plan that districts put in place after the COVID-19 closures.    

Extended School Year Services (ESY)

Under IDEA, the IEP team determines whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education (FAPE). The Nebraska Department of Education has an excellent technical assistance document from 2018 which identifies when a student is eligible for ESY:

The purpose of an extended school year is to prevent or slow severe skill regression caused by an interruption of special education services during extended periods when school is not in session. . . . An extended school year may be provided only when it is determined that a child might regress in a critical skill area to such an extent that recoupment of the skill loss would require an unusually long period of time to recoup or make it unlikely or impossible to recoup the present level of educational performance. . . . Some children with severe disabilities may consistently demonstrate a limited array of skills, but not demonstrate a significant regression/recoupment factor in any of the skills. Therefore, these children would not be appropriate candidates for ESY services.”

How do these rules and factors apply in this new environment?  Local school districts probably have three sets of students: 

Students Already Eligible for ESY

If an IEP team has already decided that a student needs extended school year services, it is hard to see how the COVID-19 closures would change that determination.  District staff should reach out to these families and ascertain (a) if they are still willing to have their student participate in ESY and (b) if they will agree to those ESY services being provided electronically rather than in person.  If the family will not agree to amend the location of the ESY that is identified in the student’s IEP, you will need to hold an IEP team meeting to set the location of the ESY. 

Students Already Deemed Ineligible for ESY 

If an IEP team has already concluded that a student does not struggle with unique dangers of regression during school breaks that cannot be recouped within a reasonable period of time after school resumes, the student is not currently eligible for ESY.  If a parent requests ESY now, the team should consider that request on an individual basis.  Keep in mind that that NDE’s technical assistance document states that ESY “is not to enhance the present levels of educational performance exhibited by children with disabilities at the end of the regular school year.”  In other words, ESY is not the appropriate vehicle to provide a little extra assistance to any special education student who might benefit from it.  The student must show a unique need based on the dual regression and recoupment standard.   

Students for Whom ESY Has Yet to Be Determined 

Many IEP teams defer the decision on ESY until the spring.  This practice is lawful, because the team is permitted to gather data on a student’s progress in meeting his/her annual goals before deciding if the student is in danger of losing critical skills due to regression that cannot be recouped when school reopens.  For these students, school staff should first reach out to families to see they would participate in ESY services if the school district offered them.  If the parents indicate their refusal, the LEA can document that referral and avoid holding a full IEP meeting.  If the parents are still open to their child participating in ESY, the school should convene the student’s IEP team.  The team should consider the factors outlined above, including reviewing regression and recoupment data from prior “scheduled breaks in instruction” such as last summer or the winter break.  The team must ultimately decide whether they predict that the student will regress so significantly over the summer that catching up on those skills would harm the student’s continued learning next year.

As you make ESY decisions, remember that ESY is not required based on a lack of expected progress on IEP goals (particularly considering the school closure and remote learning disruption impacting all students). Also remember that ESY is distinct from compensatory education. The school closure does not directly impact the analysis of ESY eligibility, and students should not qualify for ESY solely because of the school closure. 

Conclusion

As with everything else affected by the COVID-19 closures, there is not a single “right” answer to the questions of how to report progress or provide ESY to special education students in the spring of 2020.  If you have questions about a specific student or want to have a particularly difficult report reviewed, you should consult with your school district’s attorney.  Although we are also learning about the virus issues as we go, school attorneys can provide districts with significant protections when drafting these documents.  If you have questions about these or any other legal issues, please don’t hesitate to contact Karen, Steve, Bobby, Coady or Jordan at ksb@ksbschoollaw.com.   

KSB Q&A, Round 6 - Friday, April 24, 2020

When: Friday, April 24, 2020 at 10:00 AM CDT

Where: ZOOM (Info below)

What: Q&A over COVID-19 Issues

On Friday, we’re going to cover many topics to get you up to date.  We will also answer and questions you have.  We plan to cover:

• Extended school year services under the IDEA and Rule 51

• Funding and spending under the CARES Act (including inducements to pay employees and vendors)

• New Executive Order 20-20 and what that means for the Nebraska Reading Improvement Act

• Update and clarification on NDE waiver process and regulatory flexibility (NDE doesn’t want you to submit a waiver request right now)

• FFCRA Update

JOIN THE ZOOM HERE!

KSB Q&A, Round 5 -- Tuesday, April 7 at 9:00 AM

What: KSB Q&A, Round 5

When: Tuesday, April 7, 2020, at 9:00 am CDT

Where: Zoom (click on this ZOOM link)

We plan to cover several issues, including issues for boards and administrators to tackle with tight timelines and items you might want to think about putting on the agenda for your April board meeting.  The State Board of Education passed a resolution on Friday, and we’ll talk about what it means.  Most importantly, we plan to answer your questions.  

Here are some items we plan to tackle, specifically:

• Electronic Board Meetings. Do you HAVE to meet electronically with statewide directed health measures?! We’ll discuss the Executive Order and the Attorney General guidance (updated April 2). Now that each county is under a “directed health measure” limiting gatherings to 10 or fewer, we’ll talk through legal and practical meeting issues, including the risks you run holding a “normal” meeting and an electronic meeting.

• Special Education Update. Now that most schools are working through educational services, enrichment,  special education, and access equity issues, we’ll provide an update of where things stand, discuss the latest guidance, and talk through “IDEA Part C” considerations and forms.

• Grading, E-learning, Graduation.  Schools are thinking through grading and e-learning issues that may be as political as legal. We’ll talk about cases where parents have challenged schools’ grading decisions and what to think about as administrators and boards work through these issues.  We’ll also talk through child abuse reporting, child find, wellness checks, student discipline, and staff evaluation/supervision in the new alternative environment.

• Student Records, FERPA, Zoom, and other Platforms.  We’re getting many questions each week about whether Zoom creates legal issues under state and federal confidentiality laws.  We’ll talk through our thoughts on those issues.

• Paying Contractors and Employees.  The CARES Act providing $2 trillion in COVID-19 relief states: “A local educational agency . . . that receives funds under “Education Stabilization Fund”, shall to the greatest extent practicable, continue to pay its employees and contractors during the period of any disruptions or closures related to coronavirus.”  We’ll talk through discussions with NDE and others about paying employees and contractors, such as bussing and food service vendors, during this time.

• FFCRA. We’ve now got regulations and additional guidance from the DOL on the Families First Coronavirus Response Act, which provides paid sick leave and expanded family medical leave for employees impacted by COVID-19.  We’ll discuss the new regulations, documentation requirements, forms (available upon request--email Shari: shari@ksbschoollaw.com), and more.

• FEMA Funding. Most counties in Nebraska have declared local emergencies and have worked with schools to “get on the list” for possible FEMA relief, if it becomes available. We’ll talk through what we know, what we don’t know, and what you and your boards should be doing.  Here’s some of the guidance FEMA has posted, describing things that may qualify.

• April 15 Deadline and Contract Renewals.  The statutory notice deadline for nonrenewal, termination, and amendment is a week away. We’ll discuss personnel decisions, including evaluations and renewal processes that have been impacted by COVID-19.

We look forward to seeing you all again on Tuesday at 9:00 AM CDT. If you have COVID-19 questions, contact Karen, Steve, Bobby, Coady, or Jordan, or your school or ESU’s attorney.

April Fool! FFCRA Goes into Effect Today without Any Regulations or Forms

As we discussed at length in yesterday’s webinar (you can find that here), school district employees will become eligible for paid leave under the federal Families First Coronavirus Response Act (FFCRA) today, April 1, 2020.  As you can see below, even after the lawyers talked for 90 minutes, people still had a lot of questions.

At the request of several KSB clients, we have prepared FFCRA leave application forms and a “fact sheet” -- which is a short, concise summary of FFCRA to use like a quick “desk reference.”    Again, if you work exclusively with another law firm, you should contact those attorneys for FFCRA legal advice so that if you are challenged on any of these issues you are working with the firm who will defend you.  KSB clients who would like to access the FFCRA “fact sheet” and application forms should e-mail Shari (shari@ksbschoollaw.com) to ask for them.  As with everything during this crazy COVID-19 time, much of the content of forms and other documents provided constitutes legal advice.  We are charging a nominal fee ($150) for the fact sheet and the application forms, both to defray the cost to individual districts and to be consistent with the attorney-client relationship between KSB and our clients.  

As part of our efforts to strike the balance between individualized legal advice (which we charge for) and providing as much information as we can during this crisis (which we are providing for free), we’ve taken the questions from our FFCRA ZOOM and provided short answers below.  These were excellent questions, and we hope they are useful as you continue to trudge through FFCRA and its related issues.

Questions and Answers from 3/30/20 KSB FFCRA Zoom


Question on Section 125 and Daycare. Can we use the change of status form to stop taking withdrawals from employees paychecks. That way they won't lose the money that they are not going to be using for daycare expenses for the rest of the year.  Thanks.


Yes, if a school employee who is flexing money into a 125 account to pay for daycare wants to stop making that contribution they may do that, based on the fact that their daycare is closed.  Normally employees can only elect contributions to a flexible spending account during the yearly open enrollment period. That includes elections for dependent care. There are exceptions -- you can make a change if you experience a "qualifying event."  Those typically include things like, a change in marital status, a change in the number of dependents, a change in the age of your dependents mid-year, that sort of thing. There is an exception called "change in cost or coverage." This is designed to allow employees to change the amount of their election when employees switch daycare providers.  Employees who want to change their election should contact the company that administers your school’s flexible spending account, and ask them if they will consider this as qualifying as a "change in cost or coverage" if they are just not paying daycare at all.  

If the district is paying full wages during the closure, does this law affect the district?


Yes, it might.  If you are expecting staff to perform any duties, your employees could seek paid leave under FFCRA if they qualify under the Act. 

Is this FFCRA leave salary and benefits or just salaries
?

Employees who qualify for paid FFCRA leave also qualify to have the employer continue their benefits.  If there is an employee contribution toward benefits, the employer is entitled to collect that contribution or withhold it from the employee’s FFCRA leave pay. 


Does a Directive Health Measure constitute grounds for EPSL?


No, a DHM standing alone does not qualify an employee for emergency paid sick leave.  

May an employee use FFCRA to care for a grandchild while school and/or daycare is closed? 

An employee is only able take FFCRA leave to care for a grandchild if the employee is acting in the role of that child’s parent. This was made clear in the Q&A document at question 40.  


On FMLA and Emergency Sick Leave do we take out retirement and taxes?


Our best advice at this point is to withhold both unless or until we get formal guidance from the Nebraska Public Employees’ Retirement System or the IRS to the contrary. 

Can any employee with a school age child can access 80 hours of leave?


It depends.  Having a school-age child, by itself, is not enough to qualify an employee for the two weeks’ worth of emergency paid sick leave under the FFCRA.  To be eligible for the 80 hours of emergency paid sick leave, the employee must be unable to work--due to a “bona fide” need to care for their child--because their child’s school or daycare is closed or unavailable due to COVID-19 precautions.  That would be at ⅔ pay under FFCRA, even if the employee was eligible.

Our School is paying our employees working or not working. With the agreement they can be called in to do other things at anytime. Does this COVID pay affect us?


Yes, the leave under the FFCRA may affect you.  As long as eligible employees are expected to perform duties, then they may be eligible for FFCRA leave, assuming they have a qualifying reason for leave.  Most return to work agreements that we have seen expect some performance from employees, whether that is agreeing to perform duties as assigned or agreeing to come back to work, or both.  The mere existence of a return to work agreement does not preclude an employee from taking FFCRA leave. If you sent some employees home when school closed and you haven’t expected them to work and you haven’t paid them, then the federal guidance indicates that they may not receive FFCRA leave.  

If we have a Para who is currently not working (we are only paying those who show up), and has not yet filed for unemployment, can they apply for the eFMLA and get their 2/3 pay?


If the para has refused work prior to April 1, he/she has functionally quit their position and the district could take the position that he/she is not eligible for FFCRA leave.  If the district would allow this para to work, but he/she cannot because of the need to care for children (of school age, whose school has closed due to COVID-19, etc.), then the para could qualify for FFCRA leave. 

Teachers that are on maternity leave, and are asking to come back to work as they are not required to come into school.  Are we setting ourselves up for issues later on?


If a teacher who was on maternity leave can now perform the essential functions of her position, we believe she is entitled to come off leave and perform enrichment/instruction/educational duties for the district. 

Is there a form that the DOL will provide for staff to use to apply for ESL or EFLSA?


Not yet.  KSB does have forms that we will provide to clients who request them.  There is a charge for those forms, as we explained above. 

What if we have a classified employee who refuses to come to work because they are scared of COVID-19?  They have not signed a return to work agreement and they have used all of their PTO so they are taking "no pay" days temporarily.

Being scared of COVID-19 is not a valid reason to use FFCRA leave.  If the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then he or she would be eligible for emergency paid sick leave.  Self-quarantine does not qualify an employee for emergency family and medical leave. If this employee has effectively resigned prior to April 1 by refusing to work, then he or she would not be eligible for FFCRA leave.

We are planning on placing the Employee rights poster where we have all of our other posters, but I was reading that we need to email it to all staff as well or post it on our website, I was told posting it in school is enough. Please let me know where I really need to post this. Thanks,


You are required to post the Employee Rights Poster (which you can download here) in the same place you post other labor posters and notices.  You do not have to send it out to employees or post it on your website.  We do have a few districts that have asked us to help them draft a memorandum to send to all of their employees informing them of their FFCRA rights.  If you would like a copy of that memorandum, please let one of us know. 

Teachers are required to come to school one day a week and due to illness or health concerns ask to not come in.  Do we ask them to use PTO, Emergency Sick Leave, or treat it like they are there due to 79-8,106?


If teachers indicate that they cannot perform the duties of their job due to illness or health concerns, then they need to use leave available to them to excuse performance of their duties.  That may take the form of sick days, personal leave, PTO, vacation, or dock days, depending on the terms of your negotiated agreement. Vague claims of “illness” or “health concerns'' are insufficient to demonstrate a right to take leave under the FFCRA.  This employee would also not be entitled to take FFCRA leave intermittently, unless you authorize that as the employer.  

We are not paying our classified employees if they are not working.  We have offered work to all classified employees. We are paying for their insurance.  If they apply for unemployment, and get paid. Does that mean they are no longer an employee and we stop paying for their insurance??


Yes, an employee who files for full unemployment under these circumstances has functionally quit by signaling to you they do not intend to perform their duties.  Some employees may be eligible for partial unemployment benefits if their pay has been reduced due to COVID-19. Eligibility under FFCRA for those employees will be based on the unique facts and COVID-19 closure and pay decisions made by your district or ESU. 

What does it mean when they say school is "closed"? Isn't every school closed at this time?


For purposes of FFCRA, Neb. Rev. Stat. 79-8,106, and likely for special education issues, your school district is “closed” if you are not bringing students into your building for instructional purposes. 

Can both husband and wife take the leave at the same time?


Great question.  Probably, although there is no guidance that directly answers this question. 

What if an employee has decided not to sign the return to work agreement
?

We would advise treating this like a resignation and not provide FFCRA leave.  For FFCRA eligibility purposes, employees who decline to sign the agreement have indicated they do not intend to perform duties when asked during the closure. 

We did not sign R2W agreements. Offered work and Classified staff chose to take it or leave it. Had a para say I have to watch my kids, it would be a wash for me to work. It would cost me as much or more than what you will pay me. Can they come in tomorrow and ask for EFMLA, because they haven't taken the work offered due to the need to watch their kids?


We would view this employee as voluntarily quitting his/her employment prior to the effective date of the FFCRA and would not treat them as eligible for FFCRA leave. 

Is an employee eligible for EFMLA if the employee has underlying health conditions and is advised by a physician to stay home? The employee is a para that is currently reporting to the building to work.

No.  There is only one basis for an employee to take emergency family and medical leave and it is not triggered by the employee’s own illness or underlying health conditions.  If the employee’s health care provider has advised the employee to self-quarantine due to concerns related to COVID-19, then that employee would only be eligible for up to two weeks’ worth of emergency paid sick leave.    

If an employee, let’s say a classified staff member, comes in on the 3rd, and says that they couldn’t work from the 1st of April on to the 3rd. Can they apply for the 1st one even though they applied late. The reason I ask this is it could give us time to plan before payroll comes due on April 20th. I also want to be honest with my classified staff in providing them options.

Yes, we would advise you to retroact this application for FFCRA pay, as long as they were otherwise eligible during those days.

EFMLA can’t start until April 1st - correct? So what leave can they use before that?

Before April 1 classified employees will have to rely on their boards’ prior decisions to grant paid leave, place them on a return to work agreement or other arrangements for them to be paid.  Otherwise they can apply for and receive unemployment benefits based on the relaxed unemployment standards established by the Governor’s Executive Order. 

Our last day of school was March 16.  We had a long term substitute teacher for a teacher who was on maternity leave.  The long term substitute wants paid until April 3. The teacher decided to come back on March 25 to do the packets for the enrichment for her students.  Does the substitute get paid until April 3 or March 25 when the teacher came back and made packets?


We would not pay this sub for any time after March 25.  There is a strong argument that he/she is not entitled to be paid for any time after March 16. 

Can a bus driver who has not been driving since the shutdown be eligible for either type of leave? They are paid when they run a route, not otherwise…

There is an argument that this employee has been furloughed and therefore is not entitled to any FFCRA leave. 

We are allowing paras to work in the building. I have a para that said that her husband works during the day. We are offering them work during the evening (copying, painting, etc.) Can they take leave if we offer those options to our staff, like the teachers?
  She has two kids at home. 

If you and your para agree that your para will work her normal number of hours, but outside of her normally scheduled hours (for instance early in the morning or late at night), then the para is able to work and FFCRA leave is not necessary.  If you and the para do not agree that she will work these modified hours, she will most likely qualify for leave under the FFCRA at two-thirds of her regular pay. You may permit supplementing, but it is not required.  


Also 12 week OR the conclusion of school, which is the end of our para contracts?


Classified staff who qualify would be entitled to FFCRA leave until the end of their contracted school year and not over the summer, unless they are expected to perform duties over the summer.  FMLA leave, including emergency family and medical leave, can only be taken when an employee is expected to work.

If a 9 month para takes EFMLA leave on April 1 - does that mean they could get paid for 12 full weeks even though they are only 9 month employees?

No. They would be paid only through the end of their anticipated contract, a/k/a the time during which they would be expected to perform their duties. 

What if we have a classified employee who refuses to come to work because they are scared of COVID-19?  They have not signed a return to work agreement and they have used all of their PTO so they are taking "no pay" days temporarily.


This employee is not entitled to FFCRA leave.  They have functionally quit and may apply for unemployment benefits.  You may also be entitled to discontinue benefits if they receive any from the district. 

Can employees apply for unemployment if they have been cut to half the working hours?


Yes, under the Executive Order for unemployment benefits, employees can apply for benefits for pay they have lost (in whole or in part) due to COVID-19.  We believe they would be treated as a part-time employee under FFCRA for purposes of calculating their FFCRA eligibility and benefits, if any. 

*   * *

If you have additional questions about FFCRA leave (and really, how can you not have questions), you should contact your school district’s attorney.  Karen, Steve, Bobby, Coady and Jordan are all working from home, but we will be happy to visit with you about your questions on FFCRA or any other matter.

WEBINAR: Q&A with KSB, Round 4! New Details on the Families First Coronavirus Response Act

When: Tuesday, March 31, 2020, at 10:00 am CDT

Where: Zoom (click on THIS LINK)

Back by popular demand, we are hosting an informational webinar and we will answer your specific, school-related questions related to the FFCRA and your response to the COVID-19 pandemic

Q&A with KSB, Round 4: New Details on the Families First Coronavirus Response Act… 1 Thing We Learned, and 5 Choices For You

As promised, we have kept a close eye on federal guidance discussing the recent federal Families First Coronavirus Response Act (the “FFCRA”).  As you most likely have heard, the FFCRA created two new types of employer-paid leave related to the COVID-19 pandemic: (1) emergency paid sick leave; and (2) emergency family and medical leave.

On Thursday evening (3/26), the U.S. Department of Labor issued further non-binding guidance here.  We carefully reviewed the additional information, and came to one conclusion . . . . 

This needs to be discussed in a KSB Webinar!

So, back by popular demand, we are hosting an informational webinar and we will answer your specific, school-related questions related to the FFCRA and your response to the COVID-19 pandemic.

When: Tuesday, March 31, 2020, at 10:00 am CDT

Where: Zoom (click on THIS LINK)

The recent federal guidance also provided some details regarding administration of this federal leave raising important choices for school districts.  Here are five things public school districts and ESUs should consider as you plan for employee requests for this leave (which could come as early as Wednesday).

1. Are you going to allow employees taking FFCRA leave to supplement with paid leave? 

The majority of your employees who technically qualify for any leave under the FFCRA will not qualify for full pay.  If employees are taking leave because their children’s school or daycare is closed, the amount of the pay to the employees is capped at two-thirds of the greater of (a) the employee’s regular rate of pay, (b) the federal minimum wage ($7.25), or (c) the minimum wage of the state in which the employer is located ($9.00 for Nebraska).  At two-thirds of whichever rate applies, there will likely be a gap between the amount of pay received under the FFCRA-paid leave and an employee’s typical full pay.

The federal guidance indicates that employees are not entitled to use their accrued paid leave at the same time as taking paid leave under the FFCRA.  If, and only if, an employer agrees to allow it, then an employee can choose to use accrued paid leave to make up for the one-third of normal earnings that are excluded from much of the FFCRA paid leave.  So, school districts and ESUs should think about how they want to handle requests to supplement paid FFCRA leave with other accrued leave.

2. Are you going to allow employees to take FFCRA leave intermittently?

Whether an employee is teleworking or working at the employee’s usual worksite, an employee can take emergency family and medical leave intermittently only when the employer agrees to it.  Otherwise, the Department of Labor’s guidance indicates that an employee cannot unilaterally demand to take emergency family and medical leave intermittently.  So, an employee asking to work only three days per week or only half days is not entitled to do so unless the employer agrees.

3. How flexible are you going to be regarding working hours, including remote work or telework?

One of the conditions triggering eligibility for paid emergency family and medical leave is when an employee is “unable to work (or telework) due to a need for leave to care for” the employee’s child (under 18) because the child’s school or daycare is closed as a result of a COVID-19 emergency.  So, a critical issue for employers is how to determine whether an employee is truly “unable” to telework.

The recent guidance does not really explain how to make that determination.  But, the guidance does suggest that if an employee and an employer agree that the employee can work his or her normal hours outside of the employee’s regularly scheduled hours (such as early in the morning or late at night), then the employee is able to work and emergency family and medical leave is not appropriate.  Therefore, according to the guidance you cannot force the employee to take modified hours.

As a result, it is prudent for school districts and ESUs to consider providing additional flexibility, particularly in terms of timeframes, for employees to fulfill ongoing duties while working remotely.  If your employees agree to continue working with the additional flexibility that you offer, then the employees are able to work and would not be eligible for the emergency family and medical leave.

4. How are you going to treat employees who are not working at all, and who are not getting paid, because their worksite is closed?

Some of your employees may not qualify for any paid leave under FFCRA.  The federal guidance indicates that employees do not qualify for paid emergency sick leave or paid emergency family and medical leave if (a) the employee’s worksite is closed, (b) the employer sent the employee home and stopped paying the employee, and (c) because the employer does not have any work for the employee to do.  “This is true whether [the] employer closes [the employee’s] worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.”

School districts and ESUs should think about responding to requests from these employees who have been sent home, are not performing any services, and are not getting paid at all.  Similarly, if an employee is not working or working irregular hours but still getting paid pursuant to a work agreement or board declaration, those work agreements may require employees to take leave available to them (like FFCRA leave) instead of receiving pay under the return to work agreement.  (KSB Note: we will cover this in detail during our webinar.)

5. What are you going to do about teachers who choose to stop working and take leave under the FFCRA?

As you likely know, Nebraska has a statute that provides: "In case of epidemic sickness prevailing to such an extent that the school or schools in any school district shall be closed, teachers shall be paid their usual salaries in full for such time as the school or schools shall be closed.”  Neb. Rev. Stat. § 79-8,106 (emphasis added).  

If a teacher elects to stop working (e.g., stop creating online enrichment materials, stop being available for online chats with parents and students, stop communicating and collaborating with educational colleagues, etc.) in favor of taking leave under the FFCRA, the school district will have to decide how to address that teacher’s compensation.  

Under the caregiver leave in the FFCRA, the amount of pay would be capped at two-thirds of the teacher’s regular rate of pay.  In other words, taking FFCRA leave could represent a decrease in the amount of compensation that a teacher takes home in comparison to their usual salary received for performing teaching duties.  Also, as noted above, employers are not obligated to allow employees to supplement this two-thirds pay with their own paid leave.

A “usual” salary regularly depends upon the teacher fulfilling his or her duties.  For example, if last fall a teacher took extended FMLA leave (which before the FFCRA was always unpaid), the teacher could have supplemented his or her compensation by taking paid leave pursuant to the employment agreement (i.e., the negotiated agreement).  But, absent accrued paid leave, if any, the teacher’s “usual” salary went to $0 during the period of leave because the teacher was not performing any teaching duties.

An argument can certainly be made that a teacher who elects to take leave under the FFCRA to care for a minor child(ren)--rather than continuing to perform teaching duties--has chosen to receive two-thirds of his or her regular rate of pay rather than his or her “full” salary.

The recent federal guidance offers conceptual support for this position.  The U.S. Department of Labor indicates that an employee is not entitled to take paid leave pursuant to an employment agreement concurrently with FFCRA leave.  An employee can supplement the compensation received under FFCRA leave with paid leave (e.g., PTO, vacation, sick leave, etc.) only with the employer’s agreement.  With this issue in mind, it is prudent for school districts to at least consider how they will treat compensation for a teacher who elects to stop performing teaching duties in favor of taking FFCRA leave.

*   * *

As you can see, even this limited number of issues raises a lot of questions and decisions for you to make.  We hope that you join us on Tuesday, March 31, 2020, at 10:00 am CST for Q&A with KSB where we can address these issues and answer your other questions.  We look forward to seeing you (remotely, of course!).

For Your Vacant Staff Lounge: A New Poster from the Federal Government

As you have no doubt heard (maybe from us?), the federal government recently enacted the Families First Coronavirus Response Act (the “FFCRA”).  The FFCRA creates two new types of employer-paid leave: (1) emergency paid sick leave, and (2) paid emergency family and medical leave.

The FFCRA requires all covered employers (including all public schools) to post notice about the Act.  Just yesterday (March 25), the U.S. Department of Labor issued a model poster which you can use to satisfy your obligation.  This notice must be posted “in conspicuous places” on the school’s premises “where notice to employees are customarily posted.”

So, although your staff lounge is most likely vacant by now, make sure that you have this notice posted prior to April 1, 2020.

The Department of Labor has yet to issue regulations explaining the details of FFCRA (which it claims are forthcoming), but it recently published several non-binding guidance documents, such as this list of FFCRA Q&As.  One of the few pieces of new information that the Department of Labor announced was the effective date of this new law: April 1, 2020.

Unfortunately, there has been no revision, regulation, or guidance reversing the federal government’s decision to exclude public school districts (and other political subdivisions) from the group of employers who are entitled to receive payroll tax credits to recoup the expenses that they incur in providing this paid leave.  So, come April Fool’s Day 2020, public schools must pay for this employee benefit, and they do not receive payroll tax credits. That’s no joke.

We anticipate that as we get closer to April 1, schools will begin to get inquiries and requests from employees interested in taking one or both of these types of paid leave.  As of yet, the Department of Labor has not issued any official forms for you to use in documenting and granting such leave. We will keep a close eye on whether these forms start to be issued and for regulations that will (hopefully) clarify some of the tricky issues that this law has created for schools.  We’ll keep you posted (no pun intended, . . . well, sort of) on any updates.

As you begin to navigate the challenges of administering this new paid leave, responding to individual requests, or just trying to understand the poster, we recommend that you work with your school attorney, or contact Karen, Steve, Bobby, Coady, or Jordan for advice on these issues.

Questions and Answers about Special Education after OSERS and NDE’s “Continuity of Learning” Guidance During COVID-19 Closure

It’s been 3 weeks. Let’s have some straight talk.  The terms “enrichment,” “educational services,” “continuity of learning,” and many others are melting your brains at this point.  You and your staff just want to know: “How can we best serve students while complying with our legal, ethical, and moral convictions?” The difficulty in answering that question is compounded by the fact that most state and federal leaders have said they expect schools to remain closed for the remainder of the school year, or longer.   

As schools come to terms with the fact that they will not be back in session for the fourth quarter, educators are fighting their instincts to hustle and provide educational services, while recognizing their obligations to all students.  There are many barriers to overcome in moving to a completely virtual education model--or makeshift model, if we’re being honest. One of the most intractable challenges has been the issue of how districts would comply with the IDEA, in addition to equity issues of many kinds, like access and resource disparities. 

So, what exactly are “enrichment” activities compared to “educational services” that trigger our FAPE obligations?

Good question!  

The majority of school districts around the country decided at the outset that they would not provide educational services to students during the closure, or decided to get more information before trudging forward with educational services.   This decision was based in large part on the enormous practical difficulties with building a virtual school system on the fly, during a global pandemic, and amending dozens, hundreds, or thousands of IEPs. These districts were concerned about their obligations to special education students, not trying to blame them.  

The first set of guidance from the Office of Special Education and Rehabilitative Services (OSERS) was clear:

If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.

…

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.

If a district “does not provide any educational services,” then it does not owe FAPE to special education students.  While the subsequent “guidance” (discussed in the next question) does purport to provide flexibility (from OSERS/OCR) on how to implement FAPE, it does not change the more fundamental conclusion that if educational services are provided to general education students, then the requirements of FAPE apply.  Based on this guidance and a common sense reading of cases resulting from other emergencies and catastrophes, there is a difference between providing services which seek to allow students to advance along the curriculum compared to supplemental, voluntary learning serving as enrichment opportunities. We believe this is where the distinction lies, though admittedly no regulatory agency has actually undertaken to draw this line with any certainty.

Didn’t the US Department of Education tell us we don’t have to worry about the IDEA and Section 504 Act, because they’ll be lenient?  That these laws shouldn’t “stand in the way” of service students during school closures on a mass scale?

NO!  

The Office for Civil Rights (OCR) and OSERS released a supplemental Fact Sheet on Saturday, March 21, 2020 addressing these issues.  At first blush, that guidance seems to be definitive and empowering.  In bold type, OCR and OSERS declare: 

To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA) ... and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.

The Fact Sheet goes on to make clear that OCR and OSERS are not actually excusing school districts from providing students with disabilities with a FAPE.  Instead, the Fact Sheet simply says that schools may use technology to provide FAPE: 

However, school districts must remember that the provision of  FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.  

If a school district is going to offer its students educational services, they must continue to provide students with disabilities all the services that the student’s IEP team have said are necessary for FAPE.  Those services are not excused, but they can be provided using other communication modalities -- including distance learning.  This is not new -- IEP teams have always been free to provide supplemental services using telehealth and other technological methods.  But those have typically been by choice, not by deadly pandemic restrictions.  

School attorneys are warning about massive practical and procedural issues, because we understand and appreciate the rights of schools, parents, and students.  If you perceive your school lawyer to be “holding you up,” you are misunderstanding our motivations. If a school district is going to provide educational services, thus triggering its obligation to provide FAPE to all of its special education students during this pandemic closure, it must provide those students  with the full menu of services and service minutes that are called for in their IEPs--those IEPs in place prior to the closure.  Any changes to those services, related services, and service minutes may be implemented ONLY (a) with written parent consent or (b) after a full IEP meeting.  This will require case managers across the country to modify millions of IEP documents. And all of this will need to be done before the student’s services change and within 10 days of the school offering educational services to its general population.   

Now, if you are going to amend a student’s IEP during the closure, you can certainly do it by working collaboratively with the parents of the student and just agreeing to an amendment without a meeting.  In those situations, you’ll need to send PWN to the families along with a copy of the revised IEP. On the other hand, if families won’t agree, you’ll need to convene an IEP meeting, amend the IEP (and if necessary implement those changes without parent agreement).  That decision will also need to be supported by a PWN. 

Guidance issued by NDE’s Office of Special Education on Sunday, March 22, 2020, reinforces this conclusion:  “If the district continues providing education opportunities to students during the closure, this includes provision of special education and related services, too, as part of a continuity in learning plan.”  So neither state nor federal regulators will just waive FAPE if you are doing “education” for typically-developing students. 

We’re not saying OSERS, OCR, and state departments of education are leading schools astray--quite the opposite.  They are trying to thread a needle from the perspective of enforcement agencies. But we do think you should understand the fact that they’re not the only ones who get to enforce the IDEA.  While flexibility from state and federal regulatory bodies is helpful, they can’t control a judge, hearing officer, or administrative law judge any more than you can.

Well, we can just handle all these special education issues by offering compensatory education, right? 

NO.  

The Nebraska Q&A makes this explicit.  It states, “This … does not allow a district to decline all services to students with an IEP and only offer compensatory services at a later date.”  Cases from across the country make this clear, too.

The Fact Sheet states, “Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams ... must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”  

Notice that this does not excuse school districts’ obligations to provide special education during a closure so long as the school promises to make up for the missing services after school re-opens.  Instead it says if a school delays services due to the pandemic, the IEP team must consider whether the delay needs to be remedied with compensatory education when the school reopens.  

When school reopens, each student’s IEP team will need to consider whether that student needs some additional services as a result of the closure.  The Nebraska Q&A explains, “Districts should communicate the expectation and plan to meet with Individualized Education Program (IEP) teams, including parents, when school resumes, to address student-specific needs resulting from the closure.”

The assumption that you can somehow reduce or ignore services during the closure simply because you plan to consider compensatory education has become a common misconception.  Worse is the assumption that you can justify the excusal to provide services by promising to consider compensatory education on the front end.

Well, the Fact Sheet at Least Waived all of Our IDEA Timelines, right? 

NO.  

The Fact Sheet has an attachment that lists all of the IDEA timelines.  It states, “As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate.”  Then under each of the relevant timelines that are listed, the Fact Sheet makes clear that timelines may only be waived with parental consent.  Schools are not automatically excused from their IDEA (and in Nebraska, Rule 51) timelines just because they are closed due to this national emergency.  

Now, in Nebraska we have prided ourselves on the strong, collaborative relationships we build between schools and parents.  And we are confident that the vast majority of parents will be happy to work with their local school districts to agree to workable timelines related to their children’s special education services.  But do not let the headlines about the Fact Sheet fool you. School districts are still fully obligated to meet their IDEA timelines -- regardless of whether they are providing “enrichment” or full “education” to their students. 

Speaking of “Enrichment” versus “Education,” the Nebraska Department of Education is requiring full educational services, right? 

NO.  

We have strong collaborative relationships with NDE, and we have worked closely with them throughout this crisis.  To their great credit, NDE staff is trying to get you guidance as soon as possible, too. But many schools have gotten a false impression that they will not receive a waiver of Rule 10 requirements for accreditation unless they are offering “full educational services” that continue to move through the state standards and local district curriculum.  That is simply not true.  

The Commissioner has made it clear that he expects school districts to provide some sense of connection, community, and normalcy for students.  He does not expect schools to march through state standards or provide explicit instruction to all students. The rush to treat this pandemic closure period -- however long it lasts -- as a mere shift in modality of instruction is going to leave schools exposed.  To be candid, we think schools should start by considering the social and emotional needs of their community, and then move on toward academic work.  

Let us be clear: We are not saying that schools should avoid providing full educational services to students.  Nor are we joining the chorus of unhelpful voices attempting to shame schools into rolling out educational services triggering FAPE despite all the legal and practical issues that will entail.  It is our job to give you options and support you in making the best decision you can for your individual district. Our fear is these options have not exactly been clear.

Understand that if you elect to provide full-blown “education” that you must also provide students with disabilities with FAPE which must be documented in each student’s IEP one way or another.  

Got it -- If we are doing educational services triggering FAPE, we need to amend IEP documents.  So if we are just doing enrichment, we don’t have to do any paperwork, right?  

WRONG.

Our best reading of the laws and guidance is that you should provide PWN to every child with an IEP within 10 school days of your district’s closure (or, if it is just not feasible, as close to that 10 days as you can).  

These PWNs are legally significant documents, so despite our efforts to provide schools what they need when we can, we cannot simply link them to this post.  If your school district works with an attorney other than KSB, you should get their input on the version of PWNs that you send out, because those attorneys will be the ones defending you in a due process hearing or OCR investigation.  Similarly, we doubt most schools will need only one PWN.

We have provided copies of sample PWNs to KSB clients who have requested them, and we will be happy to provide them to anyone else who requests them.  You should be wary of anyone sharing “the” PWN to send in this chaotic time. These PWNs, even in draft form, constitute legal advice. We are charging a flat fee of $150 for the five sample PWNs and our instructions about how to use them.  This is not because we are unwilling to share our expertise, but because we really need to have direct communication with all clients who will be using these forms for both the district’s and KSB’s protection.

Did you listen to the “continuity of learning” webinar?!  What about all the other special education questions that we have?  

We made it a point to make sure all of the KSB attorneys listened to the webinar hosted by the Nebraska Council of School Administrators on the afternoon of March 23, at which leaders from the Nebraska Association of Special Education Supervisors and officials from NDE spoke.  The practical suggestions were excellent, and we enjoyed listening in to educators share how they are fearlessly tackling some of these issues locally. We kept a log of the questions on the chat, and we have done our best to provide thoughts on the legal questions: 

What about extended school year services?

This question has come up repeatedly.  Any student who has ESY in his/her current IEP is entitled to those ESY services.  We all hope and pray that schools and ESUs will be back in full operation by June and July and able to provide those services.  We don’t think you need to meet immediately about ESY services. That being said, if you are meeting to amend a student’s IEP soon anyway, the team could certainly address proactively what will happen if COVID-19 prevents the student from receiving ESY as initially planned.    

We would also note that if a student has ESY listed in his/her IEP, that means the team has already determined that this student has issues with regression and recoupment after school breaks.  The team should take that into consideration when they discuss that individual student’s need for compensatory education when the school reopens (we hope!) for the 2020-21 school year. 

Do we have to complete minute for minute programming based on the IEP?  

Yes, IF:

1. Your school district is providing educational services requiring FAPE; AND

   1. The IEP team has NOT met to amend the student’s service minutes in the IEP; OR

   2. The parents have NOT consented to amend the IEP to reduce those minutes without a meeting. 

No, IF:

1. Your school district is providing non-graded enrichment only; OR

2. The IEP team has met to amend the student’s service minutes in the IEP; OR 

3. The parents have consented to amend the IEP to reduce those minutes without a meeting 

MDT/IEP/Evaluation timelines? How do we handle MDTs in progress?

The Fact Sheet makes clear that these timelines are not being waived.  Repeat, there is no waiver of timelines in any law, guidance, or well placed promise of lenience.

Now, we fully believe NDE will not aggressively enforce timelines when they conduct file reviews and other compliance activities covering this COVID-19 outbreak time.  However, parents and parent-side attorneys and advocates can (and absolutely are within their rights to) demand that schools meet their timelines unless the parents agree to waive them for an individual student. 

Our best advice is to do your best to hold the MDTs that you can complete and to provide PWN to all families who have MDTs in progress which will not be able to be completed.  

How should we be completing new IEPs?  Do we complete them assuming they will start next year or using the programming that would have happened prior to the end of this school year? 

If your school is providing educational services triggering FAPE, you should write the IEP to address both the services the student will receive during the closure and the services that will be provided after school reopens officially.  You should anticipate the closure may last longer than the end of the 19-20 school year.

If your school is providing enrichment only, you will describe the services that the student will receive when school reopens.

The reality is that most IEP teams will need to reconvene when school reopens anyway, so keep that in mind before you stress too heavily about getting the wording exactly right in each plan. 

How do we work with students who were in the process of moving but the school that they were going to register at was closed due to COVID 19?

The school district where students are located is the LEA.  Even if that school is closed, that new district will be legally responsible for the education of those students when they move in (regardless of what state the new district is in). 

Now if a student is “homeless” under the McKinney-Vento Homeless Students Act, the family will have the option of seeking services from their district of origin or the district in which they are currently located.  You should confer with your school district’s attorney on specific issues that would arise in this circumstance. 

What are the guidelines for MDT evaluations that cannot be completed?

Your best bet is to reach out to families now and see if they will agree to waive the deadlines.  If they will not, contact your attorney for help crafting a PWN that you can send to these families.  

If school districts are not providing general education or special education, would we owe compensatory education?  Should that be in the PLEP?

Generally, your obligation to provide compensatory education will not be driven by your decision to provide enrichment or educational services triggering FAPE.  In either case, when school reopens, each student’s IEP team will have to ask whether a student has lost skills during the closure and, if so, whether the team will need to provide compensatory education.  

If a student is receiving supplemental services that cannot be provided without in-person service (the Fact Sheet lists hands-on physical therapy, occupational therapy, and tactile sign language educational services as examples), the IEP team will also need to assess whether the student needs some compensatory education services when school reopens or when it is safe to meet with students in person.

Compensatory services can be documented in the PLEP or in an annual goal, wherever the team and/or case manager thinks it appropriate in a given case. 

Will nursing or health care needs that were available at school be necessary if a school is having live sessions during portions of the day that the child requires related services, such as feeding? Could districts potentially have to pay a parent for these services if they take place during educational time?

Nursing services would only be required at home if:

1. The school district is providing educational services; AND

2. The student cannot access FAPE without that nursing at home. 

Remember that medical services as “related services” generally are only required to allow a student to access his or her FAPE.  Schools are not required to provide medical services unless they are related services under the IDEA. To that end, the Fact Sheet makes clear that if it is not safe for staff to serve the student, the district should not endanger student or staff health.  Instead we suggest providing PWN and having the student’s IEP team consider possible compensatory education services when school resumes.  

A COVID-19 Legal “To Do List” and Resources, All in One Place!

Entering week 3 of the COVID-19 craziness, we know you’re on information overload.  Speaking of which, for those asking, here’s a link to our webinars including the most recent Q&A from Friday, March 20 (with guest star Orron Hill, NPERS legal counsel).  We’ll plan to conduct additional webinars/Q&A sessions as needed, and we appreciate your feedback on the frequency and substance of these. You can also navigate to any of our guidance documents here.

The purposes of this update are simple: (1) to provide a list of the most common issues we’ve helped schools address over the last few weeks, with linked resources; and (2) to set the stage for legal compliance issues you’ll face this week or soon.  Please “forward it like it’s hot” to any staff or board members who have asked for this information or may be interested.

• Decide on your “continuity of instruction plan 

We’re leading with the real reason why we’re all here: the students!  Stay up to speed on “enrichment” versus “educational services” discussions and guidance as you continue forming and implementing your education plans during the closure.  Saturday night, OSERS and OCR issued “new” “guidance” on serving students with disabilities during school closures. You can read it here.  Commissioner Blomstedt discussed it on the NDE ZOOM yesterday, and we believe NDE will have guidance out on these really tough issues soon, including your questions about dual credit classes, equality of access to technology/internet, and others.

Our prior update (linked here) where we covered the initial OSERS/OCR guidance (OSERS linked here; OCR guidance linked here; OCR webinar linked here) probably won’t change all that much and is worth reviewing with your staff as you move further down the planning and implementation path.  The Nebraska Department of Education’s Office of Special Education also issued updated guidance on Sunday night, which consists of a Q&A designed to help special education directors and service providers.  That guidance can be found here.  

After the NCSA/NDE “Continuity of Learning” webinar tomorrow at 1:00 PM Central (ZOOM link here) and some other discussions KSB is having with NDE, ESU special education staff, and others, we’ll have an update out that focuses on legal issues surrounding this issue.  

• Provide PWN to all of your special education students.

Regardless of the continuity of instruction plan you are implementing, you will have to work with your special education staff to draft and send prior written notice documents for all of your special education students.  These will need to be sent after you have missed 10 school days due to the COVID-10 closure. The law and guidance are clear that students on IEPs must receive “prior written notice” (PWN) once their educational placement has been changed due to closure for 10 days or more.  KSB has drafted some samples to consider, which we will be sending to clients after tomorrow afternoon’s NDE webinar. Remember, however, that each district’s obligations and PWNs will need to be tailored to your education plans. You should consult with your school or ESU’s attorney on getting legally compliant PWNs ready to roll out on time.

• Address staff leave and work assignment issues, if you haven’t.  

Both the Governor and Commissioner Blomstedt strongly suggested this closure will last the rest of this year.  From authority resolutions, to return to work agreements, to negotiated agreement addendums, schools should have a staffing and compensation plan in place for the balance of the closure for all staff.  In addition to pay/benefits issues covered by return to work structures and agreement addendums, this includes:

• Understand your staffing limitations if “Directed Health Measures” are issued for your area, like they have been in Douglas, Cass, Sarpy, and Washington Counties.  Here’s the DMH for those 4 counties, which Governor Ricketts said would be the same as those issued per ESU territory for future community spread cases;

• Consider NPERS issues in light of staffing and paid leave plans (Here’s the NPERS guidance);

• Plan for staff leave requests under the revised FMLA .  

Last Wednesday, Congress passed the Families First Coronavirus Response Act (full text here...if you’re a glutton for punishment).  KSB’s update on the overview of the law is linked here.  We also discussed it at length during our March 20 ZOOM webinar and plan to release additional updates as the US Dept. of Labor starts issuing the required notice posters (March 25), forms, and additional guidance.  This applies to all public schools and ESUs, so you will get requests!

Even if you are paying all of your staff their full pay and benefits pursuant to a return to work agreement or paying teachers under the state statute, you may still have things to consider under the Families First Coronavirus Response Act.  For example, many school districts have been expecting teachers and at least some classified staff to perform duties during school closures. Districts may now be precluded from demanding performance of those duties if employees request employer-paid leave under this new federal law.  

If your school employees use this new employer-paid leave, you will want to talk through the issues related to payroll tax credits with your school auditors/accountants.  There will be more guidance on exactly how this will work from the Dept. of Labor soon.

• Plan for Electronic Board Meetings 

The Governor’s executive order has temporarily given boards some freedom to use technology to hold public meetings virtually.  Here Executive Order 20-03.  Here is follow-up guidance issued by the Attorney General.  Keep in mind the AG’s guidance makes clear that if you have a quorum (or more) of board members present at one physical location, that location must be open to the public to attend in-person.  No, you can’t kick them out if you have a quorum present in any physical location. KSB clients or anyone interested can contact any one of us for sample notices and guidance on your e-meeting options.  

• Review Unemployment Entitlements

Executive Order 20-04 changes unemployment entitlements under and may interact with your staffing plans during the closure.  Your boards and staff will likely have questions. Here is the order.  Here’s KSB’s Q&A about EO 20-04.  

• Get a signed copy of your county’s (or other local government) emergency declaration order. 

If your county has declared an emergency, you should get a copy of that order.  Ask your county emergency contact if they have listed your school or ESU in their declaration.  The county’s order may be relevant for 2 purposes: 

• If your county has listed your school/ESU in its emergency declaration, that may entitle you to whatever FEMA/emergency aid is available due to COVID-19. If they haven’t, your board may want to pass a motion or resolution consistent with the FEMA and other requirements at its next meeting; 

• If your county has passed an emergency declaration, that also may entitle your board to authorize emergency expenditures, including in excess of your existing statutory authority under section 81-829.51.  However, any action you took prior to your local government (county, or city in some cases) declaring an emergency--and prior to having a copy of that declaration in hand--won’t give you that authority.

KSB will have guidance out on this soon for our clients, including instances where your emergency expenditure authority may be needed if this closure lasts as long as the experts are starting to talk about.

• Teacher Evaluations.

If you have completed staff observations for a full instructional period, you should schedule post-conferences in person or electronically.  If you have all of the observations completed but still need to craft a summative evaluation document, you should likewise do so as quickly as is reasonable.  

If your administrative staff did not complete all of the classroom observations scheduled for the second semester, you are going to have to decide how to handle that problem.  You may still want to consider your options for completing evaluations prior to the end of the 19-20 year, such as observing staff during e-learning or enrichment activities. How your policy defines observations and “full instructional period” will matter.

If nothing else, you may want to consider issuing a letter or memo to each certificated staff member entitled by law and/or policy to an evaluation that will not occur due to the closure.  The purpose of the evaluation process is to help staff improve, and you can still provide notice of perceived deficiencies and concrete suggestions for improvement to each staff member. We will have a sample for KSB clients and anyone interested to consider soon. 

• Request a Rule 10 waiver, once NDE completes its form, and fill out the Food Service survey NDE sent out last week.  

We understand NDE is in the process of preparing a document which can be completed in about 30 minutes for Rule 10 waivers.  Many of the items on this list may impact those decisions.

We hope you find this information helpful.  If you have any questions about the information above or any other issue, we recommend you contact your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

We. Are. Faaaaamily! The Families First Coronavirus Response Act and Public Schools/ESUs

This past Wednesday night (March 18), President Trump signed the Families First Coronavirus Response Act into law.  You’ve been hearing about it since the House passed its version last Saturday. Now, it’s cleared the Senate and the President’s desk.  This post covers the high points of the new law, but understand from the start that at this point there are more questions than answers on how exactly it will impact schools and ESUs specifically.  Technically the law becomes effective April 1, 2020. The Department of Labor also has until then to issue clarifying guidance. Here’s what we know right now.

The Act creates two new types of employer-paid leave: (1) emergency paid sick leave, and (2) emergency family and medical leave.

EMERGENCY PAID SICK LEAVE

The Act provides for up to two weeks of employer-paid sick leave if an employee is unable to work for any of the following COVID-19-related reasons:

(1) The employee is subject to government-imposed local quarantine or isolation order.

(2) The employee has been advised by a health care provider to self-quarantine.

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to a quarantine or isolation order or who has been advised by a health-care provider to self-quarantine.

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by certain government officials.

Yes, you read that italicized paragraph correctly.  An employee can take employer-paid sick leave to care for their child if the child’s school or daycare is closed due to COVID-19 precautions.

This paid sick leave is available to all employees, “regardless of how long the employee has been employed,” and is “available for immediate use.”   Full-time employees are entitled to up to 80 hours of paid sick leave. Part-time employees receive up to the number of average number hours that the employee works during a two-week period of time.  So, an employee who normally works 30 hours per week will still only get 2 weeks’ worth of paid leave (so 60 paid hours, not 80).

For Nebraska school employees taking emergency paid sick leave for reasons (1), (2), or (3) above, the employee will be entitled to the greater of either (1) the employee’s regular rate of pay, or (2) the Nebraska minimum wage ($9.00/hr).  Notice that this may be higher than the hourly rate you regularly pay your employees since Nebraska school districts are not subject to the Nebraska minimum wage.

 For employees taking such leave for reasons (4), (5), or (6) above, the payments are reduced to two-thirds  of the greater of (1) the employee’s regular rate of pay, or (2) the Nebraska minimum wage.

The Act also caps the total amount of payment (in dollars) that employees can receive, has guidance on  how to determine paid sick leave for employees with varying schedules, and places other specific requirements of employers.

EMERGENCY FAMILY AND MEDICAL LEAVE

Unlike traditional FMLA leave, the emergency FMLA leave created by the Act is employer-paid leave.  Employees are entitled to up to 12 weeks of emergency FMLA leave when the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to . . . an emergency with respect to COVID-19 declared by a Federal, State, or local authority.

Again, neither the employee nor the child are required to be infected with or show symptoms of COVID-19.

All public school districts and ESUs are employers under the emergency FMLA.  In order to be considered an “eligible employee” for this emergency FMLA leave, employees need only be employed for at least 30 calendar days by the employer from whom the leave is requested.  

As we read the new law, every school employee (employed 30 days or more) will be entitled to this leave if they are actually unable to work, even remotely, due to having to care for a son or daughter.

(NOTE: This is in contrast to employee eligibility for “traditional” FMLA which requires, among other requirements, that an employee has been employed for at least 12 months, works at a job site with 50 or more regular employees, and has provided at least 1,250 hours of service during the previous 12-month period.)  

The first ten days of emergency FMLA leave are unpaid, and the next ten are paid--at a rate of two-thirds of the employee’s regular rate of pay.  However, the two provisions of the new law work together, so the employee may be able to take an initial 2 weeks of leave and be paid for it under the Emergency Sick Leave provisions of the Act and then take Emergency Family and Medical Leave after those first two weeks have expired.

There are a lot of other details in the Act, including caps on total leave payments, how other paid leave can be substituted, how to handle employee with varying schedules, the effect of other provisions of the FMLA, and certain exemptions for certain employees.

Is school closure enough?

The sole fact that the school where the employee works has been closed as a result of COVID-19 is insufficient in and of itself for an employee to qualify for either paid sick leave or emergency FMLA.  For example, an otherwise healthy school employee--who does not have young children and who is not caring for anyone else--is not entitled to any of the two new types of leave under this law.

As a result, the two types of leave created by the Act do not fully address many of the challenges that school leaders are facing.  A primary concern is how to provide pay and/or leave to valued staff to retain them and keep them available for school purposes.

How do you pay for it?

You’ll find a way!  (Not kidding….) Seriously, that’s their plan for public school districts.

Although the Act provides for payroll tax credits in favor of most employers to offset the expenses that the employers incur in providing this paid leave, those payroll tax credits do not apply to political subdivisions of the state (like public schools).  That’s right, the federal government just created a new benefit, that is available starting April 2, 2020, and public schools are going to have to pay for it. On these tax issues, we recommend that you work with your auditor and/or school accountant about addressing the expenses you incur in providing this federally-mandated paid leave.

We asked employees to sign return to work agreements, so does this change any of that?

It’s completely up to you and your board.  We believe these new laws will supplement, but not necessarily replace, the actions taken by your board and the pay and benefits provided under existing laws during closures.  For example, an employee may have burned through his or her FMLA leave already; or “shelter in place” orders may require employees not to come to work (regardless of childcare availability).  Plus, several employees simply will not qualify for either of the two new types of leave available under the Act.

Okay, KSB, that’s confusing.  Let’s see some examples…

1. Pam (a para) has been working diligently on any assignments you give her.  She’s a team player and has been asking her mom to care for her 3 children every day since March 16.  However, on March 31, Pam’s mom is told by her doctor to remain isolated because she is a diabetic with a heart condition.  On April 2, Pam sends in a leave request to care for her 3 school-age children. Between closures and lack of providers, there is no other child care available for Pam in your community.  Pam is probably eligible for 2 weeks of Emergency Sick Leave (even if she/her child are not sick!) to care for her children, and then likely eligible for Emergency Family Medical Leave to care for her children. She would receive at least two-thirds of her pay during this entire time, for the remainder of her expected duty weeks, up to a total of 12 (the usual FMLA limit).

2. Tom (a teacher) has not had a great attitude through the closure. He’s a PE teacher and doesn’t understand why he has to provide any enrichment activities for students during the closure.  You are requiring all staff members to at least make student contact regularly to provide enrichment activities; staff are also working collaboratively (remotely) on curriculum review and planning for future educational services.  Tom just doesn’t want to do it. Tom tells you his 3 young boys are “a handful” and therefore, due to the school closure and daycare closure, he can’t complete any of these requirements. Tom asks for both Emergency Sick Leave and Emergency Family Medical Leave.  Your choice will be to honor Tom’s request or to deny it, arguing he is not “unable” to work. However, if you deny it, Tom may be able to file a labor complaint or lawsuit on that basis.

3. Jane (your head custodian) is immuno-compromised and says that despite wanting to work, her doctor has ordered her to remain in isolation in her home unless it is medically necessary for her to leave.  Jane may qualify for the Emergency Sick Leave based on her medical professional’s directive to self-quarantine. However, that is only 2 weeks’ worth of leave. You will still need some arrangement with Jane for the weeks after.

4. Sally (a long term sub) has started exhibiting symptoms of some sort of upper respiratory virus.  Her doctor has told her that she doesn’t qualify under the medical protocols for COVID-19 testing, but that she should self-quarantine as if she had tested positive.  As a long-term sub, Sally was not offered a return to work agreement, and she would not normally be entitled to any paid sick leave. Sally qualifies for the Emergency Sick Leave based on her medical professional’s advice.  She will also likely qualify for 12 weeks of paid FMLA leave at two-thirds of her long-term sub pay. 

If you have any questions about these new categories of employer-paid leave, how to plan for the inevitable requests for this leave that you will receive, and other employment issues arising from school closures and COVID-19, we recommend that you contact your school attorney or call Karen, Steve, Bobby, Coady, or Jordan at KSB School Law.

Q&A with KSB, Round 3!

When: Friday, March 20, 2020 at 11:00 AM CST

Where: ZOOM (Info below)

What: Q&A over COVID-19 Issues

Our first and second ZOOM sessions covered many topics.  On Friday, we’re going to cover many more! Here’s what’s happened since Tuesday!

• Unemployment executive order

• Families First Coronavirus Response Act passed, expanding FMLA leave

• The first “Directed Health Measures” put in effect for Douglas, Sarpy, Cass, and Washington counties

• (Hopefully) Guidance from NDE, USDOE, and OCR re services to students during closure

• FEMA/NEMA emergency considerations and Nebraska Emergency Management considerations

• SO. MUCH. MORE.

We’ll be taking your questions in real time on the webinar.

JOIN THE ZOOM HERE

Q&A with KSB, Round 2 - THIS AFTERNOON!

Big Things Happening Today...

When: Tuesday, March 17, 2020 at 3:00 PM CST

Where: ZOOM (Info below)

What: Q&A over COVID-19 Issues

Our first ZOOM webinar discussion of COVID-19 issues on Friday seems like a year ago! We have had several board members and administrators ask if we’d hold another, in light of the events of the last several days, closures of all schools by Friday, and what, exactly, you need to consider as you plan for the coming weeks (and maybe months).  We’ve spoken with NDE, ESU special education staff, and others to try to stay up on the most recent guidance and recommendations, in light of the legal obligations.

We also want to know your questions in advance!  We’re happy to take them in real time on the webinar, as well, but if you have questions now please put them into this Google Doc.

This video is about My Movie 3

Protecting Patient Zero - Maintaining Student Confidentiality While Responding to COVID-19

If you tuned into our informational webinar or received advice from your school attorney, you know that one of our favorite answers to coronavirus questions is “talk to your local public health officials.”  You also likely heard about how important it is keep your school community informed with the status of your plans and preparations to respond to the novel coronavirus.  Communications with these stakeholders are central to an effective response supported by the community, but at the same time schools must be mindful of their obligation to maintain the confidentiality of student records and information under state and federal law. 

FERPA (Not HIPAA) Applies to School Records  

It is important to remember that The Family Educational Rights and Privacy Act (FERPA) and state student record laws govern the confidentiality and disclosure of education records and treatment records maintained by a school or other educational institution. HIPAA, which applies to medical institutions and their maintenance of medical records, does not apply to the records of a school as long as the use of the records is for educational decisions.  This was explained at length in joint guidance issued by the U.S. Department of Education and the Office for Civil Rights at the U.S. Department of Health and Human Services, which can be found here.

Maintaining Student Confidentiality

FERPA is administered and enforced by the U.S. Department of Education’s Student Privacy Policy Office (SPPO, formerly the FPCO).  The FERPA regulations, found at 34 C.F.R. Part 99, require the protection of the privacy of students’ education records and afford parents and eligible students certain rights to inspect and review education records, to amend these records, and to consent to the disclosure of personally-identifiable information (PII) from education records. FERPA prohibits the disclosure of PII from education records without written consent, unless an exception to consent applies.  

An education record is any record that directly relates to a student and is maintained by an educational agency or institution. 34 C.F.R. § 99.03. An education record can either be in “print or computer media.”

This means FERPA would determine whether or not your school nurse could share information she collected about a student with county health officials.  This also means that, unless an exception applies, written parental consent is required prior to disclosing such information. Earlier this week, the SPPO released guidance to schools responding to the novel coronavirus in the form a FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (“FAQs”), which can be found here.  The FAQs were intended to assist school officials in working with public health officials while complying with the requirements of FERPA.

Sharing Information with Health Officials

While consent is generally required prior to disclosing PII from a student’s education records, an exception applies if a school determines, based upon the totality of the circumstances, that there is an articulable and significant threat to the health or safety of the student or another individual necessitating disclosure.  This is often referred to as the “emergency” exception to consent.

The FAQs document empowers schools to use this exception as appropriate to share information with health officials.  It provides:

If an educational agency or institution, taking into account the totality of the circumstances, determines that an articulable and significant threat exists to the health or safety of a student in attendance at the agency or institution (or another individual at the agency or institution) as a result of the virus that causes COVID-19, it may disclose, without prior written consent, PII from student education records to appropriate officials at a public health department who need the information to protect the health or safety of the student (or another individual). Public health department officials may be considered “appropriate parties” by an educational agency or institution under FERPA’s health or safety emergency exception, even in the absence of a formally declared health emergency. Typically, public health officials and trained medical personnel are among the types of appropriate parties to whom PII from education records, may be non-consensually disclosed under FERPA’s health or safety emergency exception.

The document further empowers schools to rely on the opinions of local public health authorities in determining whether there is a significant, articulable threat to students.  It states, “If local public health authorities determine that a public health emergency, such as COVID-19, is a significant threat to students or other individuals in the community, an educational agency or institution in that community may determine that an emergency exists as well.” 

Additionally, the U.S. Department of Education has emphasized that a school’s decision to release information pursuant to the emergency exception will not be second guessed.  In fact, 34 C.F.R. § 99.36(c) reads as follows:

If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination.

Sharing Information with the Public  

While the health or safety emergency exception would permit disclosure of PII to health officials, it would not permit disclosure of PII to the general public.  According to the FAQs, schools may generally release information about a student to the school community “only if that information is in a non-personally identifiable form.”  In releasing information, the school must ensure that the student’s identity is not personally identifiable, either directly or indirectly considering all reasonably available information.  

Conclusion

Fortunately, FERPA provides schools the discretion to disclose student information to appropriate officials as necessary to combat significant risks posed by the novel coronavirus.  In communicating with the public, though, schools must be mindful of a student’s right to confidentiality and only disclose de-identified information. If you have any questions about complying with FERPA, or any other legal issue, we recommend you contact your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

You Say You Want a RESOLUTION, Well, You Know! School Board Resolution, Authority, and Considerations under COVID-19

All of KSB’s guidance, sample documents, and links to key agency guidance can be found here, at our dedicated COVID-19 page: ksbschoollaw.com/covid19

We’ve had many requests for the webinar recording, which you can access directly from our COVID-19 site, or by following this link: KSB COVID-19 WEBINAR

During KSB’s impromptu COVID-19 webinar on Friday, March 13, 2020, we proposed to circulate a sample resolution which would give the superintendent the authority to take non-discretionary actions in the event of a possible disclosure.  There is also an optional provision attempting to account for the staff leave and payment issues we discussed. You can access that resolution here, and as always, you should consult with your school district’s attorney and receive advice prior to adopting a resolution.

Your board may also want to consider a variety of additional issues in anticipation of a possible school closure.  We have tried to come up with a list of the key COVID-19-related issues your board may also want to consider. Where we have already provided guidance on these issues, we linked it below.  As always, you should consult your school district’s attorney on each issue, because your existing policies, contracts and other unique situations will require customization of these resolutions for your district:

• Leave considerations for certificated staff covered by the negotiated agreement.  As you know, the NSEA proposed an addendum to modify your negotiated agreement.  KSB has also posted a modified version which requires staff to use leave provided by your negotiated agreement.  Here is our update about both addendums, your options, and other considerations.

• Leave considerations for classified staff and certificated staff not covered by the negotiated agreement.  Upon request, KSB or your school’s attorney can work with you on documents you may need to provide any necessary pre-closure leave and post-closure continuation of pay and benefits to employees not paid by law.  The board could consider a motion or resolution authorizing the superintendent to sign these agreements, provide paid administrative leave, or implement additional leave.

• Authority to suspend, cancel or reschedule certain events, such as prom, graduation, and school trips.  Although we believe that the superintendent has the authority to take these steps without formal board action, it may be helpful politically if the superintendent has formal board authority to take these steps since they will likely be unpopular with at least some members of your community.  Here is guidance provided by Nebraska DHHS regarding closures.   It specifically suggests not to hold events with an expected attendance of 250 or more people prior to community transmissions and to limit gatherings to 20 or fewer after community transmissions have begun.

• Authority to pay other non-discretionary claims.  In the event of a prolonged closure, the board may want to give the superintendent authority to make certain payments even if the board cannot or does not meet—for example service payments on a bond or payments to food vendors who are still providing items for the school’s food program.  The more specific this grant of authority is from the board, the less likely you will be to face a challenge from a disgruntled patron in the future. 

• Authority to assign staff as needed prior to a closure, during a closure, and after a closure.  Again, although superintendents already have the authority to assign staff as needed, this may be politically useful and will signal that staff assignments will be both unpredictable and may change without much notice.  This could include assigning staff to perform certain duties at home (although be mindful that such an assignment will almost certainly convert the employee’s leave day to a duty day.)

• Authority to hire additional classified staff or contract for sanitation and other services as needed.  Many administrators have asked about authority to hire staff or contract for services in the event deep cleaning or other services are needed due to COVID-19.  Most districts already have a policy conferring classified staff hiring authority to the superintendent or his or her designee, and a policy outlining the superintendent’s ability to contract for services.  However, a resolution specifying this may be appreciated by your administrators.

• Waiver of doctor's note requirements for student absences related to illness.  Many schools require a note from a physician after student absences last for "X" number of days.  Given the testing limitations for COVID-19 and the public policy desire for anyone sick to stay home, your board and administration should consider suspending those types of requirements under your mandatory attendance policies for the remainder of the year.  A simple motion vote could accomplish this if it is on your board's agenda.

There are certain duties which we believe that the board cannot simply delegate to the superintendent.  Our quick, non-inclusive list of those items includes the following:

• Authority to hire and/or discharge certificated staff.  By statute the board must take these actions.  This includes entering into a contract with administrators.

• Authority to waive or change credit hour requirements for graduation.  Again, this is a statutory function of your board.  Although we believe you will eventually be called upon to allow your seniors to graduate with a truncated set of credits and classes, the board will be the one required to take that action.  

• Authority to open and select bids, initiate a bond or override election, or amend the district’s budget.  These are core board functions that, by statute, cannot be delegated by the board of education.

• Authority to modify your negotiated agreement.   The board must approve negotiated agreements, so although the board can approve an addendum regarding leave, it cannot delegate to the superintendent the authority to modify the negotiated agreement without board approval.

We hope these considerations are helpful.  If you have any questions, please contact Karen, Steve, Bobby, Coady, or Jordan, or contact your school district’s attorney.

So You Want to Skip Your Board Meeting… Coronavirus and Board Governance

*******You will be able to find all of the guidance from KSB School Law, and it will be updated, at this site: https://www.ksbschoollaw.com/covid19*******

We’ve seen many school districts close their doors temporarily in response to the COVID-19 or coronavirus.  Many other districts are thinking about doing the same. We wanted to share our thoughts about some of the questions we’ve heard about how to take certain actions if the school is closed and board meetings are cancelled.  

May a School Board Hold a Meeting by Video or Telephone?

No!  We can hear you now.  “But I know lots of organizations that hold meetings this way.”  And you’re right. All state agencies, boards, commissions, councils, and committees may hold such meetings.  Entities formed under the Interlocal Cooperation Act and the Joint Public Agency Act may hold meetings electronically.  So can the ESUCC, community colleges, and a couple of other public entities. But school districts are not on the list. Schools may allow any member of the public to attend a meeting by video or telecommunications equipment, but that rule does not include board members.  As Judge Smails put it 40 years ago, “You’ll get nothing and like it!”

If We Hold A Meeting, May the School Force Patrons to Watch the Meeting from a Separate Room by Video?

The public has the right “to attend” school board meetings.  As indicated above, schools may also allow any member of the public to attend a meeting by video or telecommunications equipment.  But we cannot find any authority which would allow you to force patrons to “attend” the meeting by watching the meeting on a video screen in another room.  If your region has a significant COVID-19 outbreak, please contact your school attorney before taking any steps restricting the public’s ability to attend your meetings. 

May We Delegate Certain Authorities and Powers to the Superintendent or Another Person?

The ability of the school board to delegate its duties to employees or others typically depends on the type of duty involved, the statutory language, and legislative intent.  The general rule is that a governmental board may not delegate its powers involving the exercise of judgment and discretion, but duties which are purely ministerial and executive may be delegated.  We can hear your now: “Save your legal mumbo-jumbo for the next guy. What can our superintendent do on behalf of the district if the board doesn’t meet?” Unfortunately, the line between discretionary functions and ministerial or executive functions isn’t always clear.  Our best advice is that the board likely CAN delegate the authority to make regular payroll (because that is ministerial) but CANNOT give the superintendent or other staff member blanket authority to pay all claims and sign all contracts (because that would involve discretion).  

May the board lawfully delegate the authority to hire new staff members to the administrative team?  What about the renewal of existing staff contracts?

School boards are statutorily required to approve employment contracts for newly hired certificated staff.  That duty cannot be delegated. Employment contracts for certificated staff “rollover” and automatically continue for another year unless action is taken by the school board by April 15th (unless there is an earlier date required by employment contract, negotiated agreement, or school policy) to nonrenew, terminate, cancel, or amend them.  This authority also cannot be delegated to an employee.  

If we hold a special meeting, can we go into closed session to talk about all of this stuff NOW, and plan for what we want to do based on staff requests, parent requests, and possible school closures?

Maybe! The Open Meetings Act allows school boards to meet in closed session to conduct “strategy sessions with respect to collective bargaining.”  This would entitle the board to enter closed session to consider the proposed medical leave addendum put out by the NSEA, or another addendum or contract you have received from your legal counsel.  Outside of collective bargaining, there are no stated reasons in the law to permit a closed session related to coronavirus issues.

In general, we do believe you can use closed session for contract negotiations (such as with administrators or classified staff), for the same public policy reasons you can use closed session for negotiations.  You may also be able to enter closed session to receive and discuss legal advice, to avoid waiving the attorney-client privilege. However, before you do so you, you should check with your school or ESU legal counsel.

Can we skip a regular meeting in one or more months?

Technically, no.  Section 79-554 states, “Regular meetings shall be held on or before the third Monday of every month.”  However, the board is permitted to excuse absences of board members who may be sick, and you can hold a meeting with a simple majority of members: “In all meetings of a school board of a Class III school district, a majority of the members shall constitute a quorum for the transaction of business.”

In the event of mass closures or forced closures, we intend to reach out to the Nebraska Attorney General’s office for guidance on these questions.

Conclusion

As you can see, simply suspending the meetings of a board of education is not something that can be undertaken lightly.  As we understand the advice from public health officials, crowds of more than 10-20 people should be avoided. We think that likely means that your boards will be permitted to continue holding regular meetings, even if you do close your school for a period of time.  There’s a good argument that you should hold at least your regular meetings, which by statute are required monthly.

If you have any questions about your school skipping its regular school board meeting, we recommend you contact your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.