Montgomery County Educational Service Center: Legal Updates

1. Montgomery County Educational Service Center: Legal Updates Presented by: William M. Deters II wmdeters@erflegal.com

2. HB 59- the Budget Bill

3. HB 59- the Budget Bill What Have They Done Now? • Additional Funding, with Heighted Focus on Accountability • Changes to Minimum School Year • Home school/Nonpublic Participation in Extracurriculars • New Requirements for JVSD Board Members • Other Modifications Relevant to Public Schools

4. HB 59- the Budget Bill • Effective Date of HB 59: • Signed June 30th • Finance provisions effective immediately – July 1st • Other provisions effective 90 days from date of signature – essentially October 1st • Note - several provisions will become effective at a later date as specified in the text of the bill.

5. HB 59 – the Budget Bill • Budget increases the amount per student received by public schools to the following: • $5,745 in 2014 • $5,800 in 2015 • In addition to funds based on a district’s property wealth and residents’ incomes, schools will receive funds according to the classroom needs of individual students • Districts will receive additional money for those students who qualify for one of the many areas of targeted investment where students come to school needing additional assistance • If a targeted student leaves a school, those funds will follow the student to the new school • “Targeted Investments” includes funding for students with disabilities, English language learners, students needing literacy instruction in grades K through 3, children in poverty, and gifted and talented students • Budget increases funding to place the most at-risk children in quality early childhood education programs as well.

6. HB 59 – the Budget Bill • ORC 3301.07 – District and Building Level Financial Reports • Requires districts to provide financial reports at both the district level and building level • Prior law required reporting at the district or building level, but not both • Report must now include information on total revenue and expenditures, per pupil revenue, and expenditures for both classroom and nonclassroom purposes both in aggregate and by targeted subgroups. • Expands reporting requirements of statute to community and STEM schools, college-preparatory boarding schools

7. HB 59 – the Budget Bill • ORC 3317.034 – Enrollment (Effective July 2014!) • A student must be considered “enrolled” and therefore included in EMIS: • For any portion of the school year the student is participating at a college under Chapter 3365; • For any period of time beginning on the date on which the school has both received the documentation of the student’s enrollment from a parent and the student has commenced participation in learning opportunities offered by the district. • “Learning Opportunities” are defined as both classroom-based and nonclassroom-based learning opportunities overseen by licensed educational employees of the district that are in compliance with criteria and documentation requirements for student participation, which shall be established by ODE. • A student’s instruction time in nonclassroom-based learning opportunities shall be certified by an employee of the district.

8. HB 59 – the Budget Bill • ORC 3317.034 – Enrollment, cont. • For purposes of ADM reporting per 3317.03, a student is no longer considered enrolled when: • The district receives documentation from a parent terminating enrollment ; • The district receives documentation from another public or nonpublic school indicating the student’s enrollment elsewhere; • The student fails to participate in learning opportunities and has not received an excused absence for 105 continuous hours (district must, however, pursue remedies for truant students); or • The student ceases to participate in learning opportunities provided by the school. • No school district may enroll/withdraw a student from EMIS later than thirty days after the student’s actual enrollment or withdrawal from school

9. HB 59 – the Budget Bill • ORC 3317.40 – NEW Subgroup Reporting • Creates additional reporting requirements for certain subgroups. • Defines subgroups to include: • Students with disabilities • Economically disadvantaged students • Limited English proficient students • Gifted Students

10. HB 59 – the Budget Bill • ORC 3317.40, cont. • Requires a district not meeting ODE’s requirement of satisfactory achievement and progress for a subgroup to: • Submit an improvement plan to ODE • Permits ODE to require that the plan include partnering with another entity for services to that subgroup • Requires the State Board of Education to establish measures of satisfactory achievement and progress not later than December 31, 2014 • Requires ODE to use the measures established by the State Board to determine if a district or school has made satisfactory achievement and progress for certain subgroups by September 1, 2015, and annually thereafter • Requires ODE to publish a list of schools, districts, and providers that have demonstrated an ability to serve each subgroup of students.

11. HB 59- the Budget Bill • ORC 3313.48 – Minimum School Year: • Beginning 2014-2015 School Year . . . • Changed the minimum school year requirement for city, exempted village, local and joint vocational school districts from “days” to “hours”: • 455 hours for half-day kindergarten • 910 hours for full-day kindergarten • 910 hours for grades 1-6 • 1,001 hours for grades 7-12 • “Hours of operation” include time spent during scheduled classes, supervised activities, and approved education options, but exclude lunch and breakfast periods as well as extracurriculars. • Hours may also include one or more of the following: • Equivalent of 2 days per year for parent-teacher conferences • Equivalent of 2 days per year for professional development of teachers • Morning & Afternoon recess for grades K-6 not to exceed 15 minutes in duration per period

12. HB 59- the Budget Bill • ORC 3313.48—Minimum School Year, cont. • Board must hold public hearing not later than thirty (30) days prior to adopting the school calendar to address at a minimum the following: • Total number of hours in school year • Length of school day • Beginning and end dates of instruction • Reduction in hours of operation • Board must formally adopt a resolution before it can reduce the number of hours of operation in any school year from that which was offered the previous school year. • Cannot reduce the hours below statutory minimums.

13. HB 59- the Budget Bill • ORC 3313.48—Minimum School Year, cont. • Compatibility with JVSD • Each city, exempted village and local school district must consider the compatibility of any changes to the hours or days in which high school is open for instruction with the needs of any JVSD currently serving any of its students. • Must specifically consider impact on: • Student access to instructional programs offered by JVS; • Incentives for students to participate in career-technical education; • Transportation; and • Timing of graduation • Board must provide JVSD advance notice of the proposed change and the two boards must enter into a written agreement prescribing reasonable accommodations to meet the scheduling needs of the JVSD prior to implementation of any change.

14. HB 59- the Budget Bill • ORC 3313.48—Minimum School Year, cont. • Compatibility with Community Schools • Prior to making any changes to hours or days in which any school in the district is open for instruction, the board must consider the compatibility of the proposed change with the scheduling needs of any community school formed under Chapter 3314 to which the district is required to provide student transportation. • Again, must specifically consider impact on: • Student access to instructional programs offered by community school; • Transportation; and • Timing of graduation • Must also provide advance notice to governing authority and enter into agreement prescribing reasonable accommodations to meet scheduling needs of community school prior to implementation.

15. HB 59- the Budget Bill • ORC 3313.48—Minimum School Year, cont. • Consultation with Nonpublic Schools • Before changing hours or days of instruction for any school, the Board must consult with chartered nonpublic schools to which the district is required to provide transportation to students. • Board must consider the effect of the proposed change(s) on schedule of transportation for any of the aforementioned students. • Likewise, the governing board of a nonpublic must consult with public school district board before implementing changes to hours or days it is open for instruction.

16. HB 59- the Budget Bill • NEW statutory changes to JVSD Boards- ORC 3311.19: • Scrap almost everything from prior law! • JVSD Board Member Terms: • After effective date of bill, members shall serve a term of three years. • No member may serve for more than two consecutive terms. • Terms are consecutive unless separated by three or more years. • Current members of a JVSD board may serve until the expiration of their current terms, after which future members will be appointed pursuant to the new rules. • The manner of appointment and total number of members appointed to a JVSD Board will be based on terms of the most recent plan for the JVSD on file with ODE.

17. HB 59- the Budget Bill • 3311.19 (B) – JVSD Board Member Selection Criteria (Mandatory!): • Selection shall based on diversity of the employers from the geographical region of the state in which the territory of the JVSD is located. • Not less than three-fifths (3/5) of the members of the board shall reside in or be employed within the territory of the JVSD.

18. HB 59- the Budget Bill • 3311.19(C)(2) - JVSD Board Member Selection Criteria, cont.: • Members of JVSD board must have experience as one of the following: • CFO • CEO • HR Manager • Other business/industry/career counseling professional who is qualified to discuss the labor needs of the region with respect to the regional economy. • Appointing board must appoint individuals who represent employers in the region served by the JVSD who are qualified to consider the state’s workforce needs with an understanding of the skills, training, and education needed for current and future employment opportunities in the state. • The appointing board may give preference to individuals who have served as members on a joint vocational school business advisory committee who meet the qualifications listed above.

19. HB 59- the Budget Bill • Another important change to JVSD Boards- ORC 3311.19: • Under prior law, when ESC governing Board served as JVSD Board: • The ESC superintendent served as executive officer of JVSD. • ESC governing board could also appoint the ESC superintendent to serve as treasurer of the JVSD. • Those provisions have been struck from the law. • Now merely a requirement for JVSD board to appoint superintendent and treasurer.

20. HB 59- the Budget Bill • ORC 3313.5312 - NEW Statutory changes to Home School Student Participation in Extracurricular Activities • District of Residence: student who receives home instruction shall be given the opportunity to participate in any extracurricular activity offered at the district school where the student would otherwise be assigned. • If student chooses to participate in a particular activity, he/she cannot participate in the same activity at another school or in another district. • Any Other District: Superintendent may permit student who receives home instruction to participate in any extracurricular of the district, but only if the district of residence does not offer that extracurricular.

21. HB 59- the Budget Bill • ORC 3313.5312 – Home School Student Participation in Extracurricular Activities, cont. • What do we mean by “student receiving home instruction?” • ORC 3321.04 (A)(2): Superintendent has excused child from attending school because he or she is being instructed at home by a person qualified to teach all subjects mandated by law and/or required by the Superintendent. • ORC 3313.64 and 3313.65 are also referred to in the statute to define district of residence. • By the way: • HB 59 removed the duty of an ESC Superintendent to excuse students for home instruction in local school districts. • Now all city, exempted village and local school district superintendents have the authority to authorize home instruction.

22. HB 59 – the Budget Bill • ORC 3313.5312 – Home School Student Participation in Extracurricular Activities, cont. • What do we mean by “extracurricular activities?” • ORC 3313.537(A) – “pupil activity program that a school or school district operates and is not included in the district’s graded course of study, including an interscholastic extracurricular activity that a school or school district sponsors or participates in and that has participants from more than one school or school district.”

23. HB 59- the Budget Bill • ORC 3313.5312 – Home School Student Participation in Extracurricular Activities, cont. • To participate in extracurricular activities, a student of home instruction must: • Be of the appropriate age and grade level as determined by the Superintendent, for the school that offers the extracurricular; • Be able to meet the same nonacademic and financial requirements as any other participants; and • Fulfill one of the following: • If student received home instruction in the preceding grading period, student must meet any academic requirements established by the state board of education for continuation of home instruction, or • If the student did not receive home instruction in the preceding grading period, the student’s academic performance during the preceding grading period shall have met any academic standards for eligibility to participate in the program established by the school district.

24. HB 59- the Budget Bill • ORC 3313.5312 – Home School Student Participation in Extracurricular Activities, cont. • Eligibility for a student who leaves mid-year for home instruction will be based on an interim academic assessment issued by the district in which the student was enrolled that is based on the student’s prior work. • If a student who begins home instruction after the beginning of the school year was ineligible to participate at the time of departure due to failure to meet academic standards or any other requirements of the district may not participate until the Superintendent verifies that the student has met the requirements of the state board for continuation of home instruction. • Regardless, the student may not participate in the same semester in which the student was determined ineligible.

25. HB 59- the Budget Bill • ORC 3313.5312 – Home School Student Participation in Extracurricular Activities, cont. • No school district may impose additional rules on a student that are not applied to other students participating in the same extracurricular activity. • The district cannot impose additional fees either! • No district, interscholastic conference, or organization that oversees interscholastic conferences or events may impose conflicting eligibility requirements.

26. HB 59- the Budget Bill • ORC 3313.5311 - NEW Statutory provisions for Nonpublic Student Participation in Extracurricular Activities • District of Residence: A student enrolled in nonpublic school must be allowed to participate in an extracurricular activity that is not available at the nonpublic school but is available at the public school to which student would have been assigned. • Any Other School District: Superintendent may afford any student enrolled in a nonpublic school who is not otherwise entitled to attend school in the district, the opportunity to participate in an extracurricular activity offered by a school of the district, but only if both of the following apply: • Nonpublic school does not offer the activity; and • The activity is not interscholastic athletics or interscholastic contests or competition in music, drama, or forensics.

27. HB 59- the Budget Bill • ORC 3313.5311 – Nonpublic Participation in Extracurricular Activities, cont. • To participate, a student enrolled in a nonpublic school must: • Be of the appropriate age and grade level, as determined by the Superintendent. • Fulfill same academic, nonacademic, and financial requirements as any other participant. • No school may impose additional rules or charge additional fees for participation. • No district, interscholastic conference, or organization that oversees interscholastic conferences or events may impose conflicting eligibility requirements.

28. HB 59 – the Budget Bill • ORC 3319.112 – Changes to OTES/OPES • Student Growth Measures • The final bill did not change SGM rating percentage (still 50%) • However, when calculating student academic growth, attendance requirement for exclusion of student data changed from 60 or more unexcused absences to 45 or more excused or unexcused absences • Bill also changed performance rating from “proficient” to “skilled”

29. HB 59 – the Budget Bill • ORC 3319.031 – Business Managers • For districts that elect not to appoint a licensed business manager . . . • Authorizes the board to assign the statutory duties of a business manager to other employees or officers of the board, including the treasurer, and to give those employees any title that reflects the assignment of those duties • Specifies that if a board assigns the duties of a business manager to the district treasurer, the district superintendent (not the treasurer) has the authority to recommend the appointment or discharge of non-educational employees • ORC 733.20 – specifically supersede case law to the contrary

30. HB 59 – the Budget Bill • ORC 3319.073 – Professional Development • Districts must now incorporate human trafficking content into in-service training in addition to training in the prevention of child abuse, school safety and violence prevention, substance abuse and promotion of positive youth development. • Each nurse, teacher, counselor, school psychologist or administrator must complete at least four hours of in-service training within the first two years of employment, and every five years thereafter (this requirement has not changed).

31. HB 59 – the Budget Bill • ORC 5705.217 - Levies • Board may adopt a resolution to renew one or more existing levies, or to increase or decrease the rate of a tax levied under this section, for the purpose of providing funds for either current expenses and general permanent improvements or solely for general permanent improvements. • Note: renewal levies receive 12.5% rollback, replacement levies will not! • ORC 5705.21 – School Safety Levies • Permits school districts to levy a property tax exclusively for school safety and security purposes (5705.21)

32. SB 21- Third Grade Reading Guarantee

33. SB 21 – Third Grade Reading Guarantee • Signed by the governor on June 4, 2013 • Revised the 3rd Grade Reading Guarantee • The state board must designate a level of achievement, not lower than “limited level of skill” on the third grade English language arts assessment for a student to be promoted to the fourth grade. – R.C. 3301.0710(A)(3) • Each year the state board must review and adjust the level of achievement upward until the level is equal to at least “proficient.”

34. SB 21 – Third Grade Reading Guarantee • Beginning with the 2013-2014 school year: • Unless exempt, students who do not pass the 3rd grade reading achievement assessment, at least at the “equivalent” level, will be retained • For students in the 3rd grade during 2012-2013 who did not pass with at least equivalent level and were promoted to the 4th grade: • Districts must provide the student with intense interventions in the 4th grade unless the student was promoted because other data indicated that the student was academically prepared for 4th grade

35. SB 21 – Third Grade Reading Guarantee • Students exempt from diagnostic assessment, identification, and retention requirements of the 3rd grade reading guarantee include: • Students with significant cognitive disabilities • Students with other disabilities as approved by ODE on a case-by-case basis *Basically, these are students that are, or will be, taking alternate assessment

36. SB 21 – Third Grade Reading Guarantee • Students exempt from the retention requirements of the 3rd grade reading guarantee include: • Students with a disability when the student’s IEP exempts the student from retention under this division of the law • Students who demonstrate an acceptable level of performance on an alternative standardized reading assessment (per ODE) • ESL Students who have been enrolled in US schools for less than 3 years and have less than 3 years ESL instruction (change from 2 yrs under previous law) • Students with a disability entitled to special education and related services, who have taken the third grade language arts achievement assessment, have an IEP or 504 plan that shows that the student has received intensive remediation in reading for two school years but still demonstrate a deficiency in reading, and who were previously retained in any of grades K-3 • The student received intensive remediation for reading for two school years but still demonstrates a deficiency in reading and was previously retained in any of grades K-3 • In this situation, the student must continue to receive intensive reading instruction in 4th grade

37. SB 21 – Third Grade Reading Guarantee • Any student entering 3rd grade for the first time after July 1, 2013 and identified as a struggling reader or retained in 3rd grade pursuant to a non-satisfactory score on the English Language Arts assessment, must be assigned a teacher who has at least one year of teaching experience and who satisfies one or more of the following criteria: • Holds a reading endorsement and has attained a passing score on the corresponding assessment for that endorsement, as applicable • Has a completed master’s degree with a major in reading • Was rated “most effective” for reading instruction consecutively for the most recent two years based on assessments of student growth measures developed by a vendor and that is on the list of student assessments approved by the state board • Was rated "above expected value added“ in reading instruction, as determined by criteria established by the department, for the most recent, consecutive two school years • The teacher has earned a passing score on a rigorous test of principles of scientifically research-based reading instruction as approved by the state board. • The teacher holds an educator license for teaching grades pre-kindergarten through three or four through nine issued on or after July 1, 2017

38. SB 21 – Third Grade Reading Guarantee • Alternatively, any student entering 3rd grade for the first time after July 1, 2013 and identified as a struggling reader or retained in 3rd grade pursuant to a non-satisfactory score on the English Language Arts assessment may: • Be assigned a teacher with less than one year of teaching experience if the teacher satisfies one or more of the previous criteria demonstrating competency AND the teacher is provided a mentor who meets the primary proficiency requirements • Be assigned a teacher who holds an alternative credential approved by the department or who has successfully completed training that is based on principles of scientifically research-based reading instruction that has been approved by the department • Receive reading intervention or remediation services from an individual employed as a speech-language pathologist who holds a license issued by the board of speech-language pathology and audiology and a professional pupil services license as a school speech-language pathologist issued by the state board of education • Be provided services by a teacher that is not the teacher of record so long as that other teacher meets the primary proficiency requirements and the teacher of record and the school principal agree to the assignment. • Any such assignment shall be documented in the student's reading improvement and monitoring plan

39. SB 21 – Third Grade Reading Guarantee • A teacher may teach reading to any student who is an English language learner, and has been in the United States for 3 years or less, or to a student who has an IEP if that teacher: • Holds an alternative credential approved by the department OR • Has successfully completed training that is based on principles of scientifically research-based reading instruction that has been approved by the department

40. SB 21 – Third Grade Reading Guarantee • School districts that meet both criteria below are required to submit a reading improvement plan to ODE and operate under the plan until meeting the criteria: • District received a grade of “D” or “F” on K-3rd grade literacy progress measure (based on past 2 consecutive report cards) AND • Less than 60% of 3rd grade students obtained at least a proficient score on the fall and spring administration of the English language arts assessment • Districts who perform above either criteria are no longer required to submit an improvement plan to ODE • ODE is required to post all plans on its website

41. Restraints and Seclusion

42. Restraints & Seclusion • OAC 3301-35-15: NEW Provisions • Promotes the use of positive behavioral interventions and limits the use of restraints & seclusion • Increases student safety when using restraint and seclusion by prohibiting dangerous types of restraint and seclusion practices • Increases accountability, training of staff, and parent involvement

43. Restraints & Seclusion • The administrative code requires that all districts have policies in place for restraint and seclusion for the 2013-2014 School Year • ODE has provided a model policy: http://education.ohio.gov/Topics/Other-Resources/School-Safety/Building-Better-Learning-Environments/Policy-Positive-Behavior-Interventions-and-Support • It is required that the district’s adopted policy be “consistent” with ODE’s policy on PBIS, restraints, and seclusion

44. Restraints & Seclusion • Purpose of ERF’s model Restraint and Seclusion Policy: • Ensure that districts meet the statutory requirements of the law • Provide a model policy that is consistent with ODE’s policy • Exclude unnecessary restrictions on the district • Ensure that the policy protects students and provides guidance and accountability for staff conduct • Things to Remember: • The law does provide exceptions for emergency situations • Districts continue to have a duty to keep students and staff safe in emergency situations

45. Restraints & Seclusion • Tips for Individualized Restraint & Seclusion Plans: • Multiple instances of restraint and seclusion are only acceptable under IDEA/504 when all other strategies fail • Some restraint and seclusion may allow a child to receive FAPE in a less restrictive environment • Effective de-escalation is highly individualized – look to each child’s ETR and train staff accordingly • Make provisions to implement restraints away from other students, if possible. BUT, direct staff to implement restraints in the presence of other staff if at all possible • Consider naming and training a team of faculty and staff to serve as a physical intervention team. Provide these individuals with special training on the proper use and implementation of restraints. • Warn staff against using a restraint against a student who the staff member could be perceived as being angry with, if at all possible • Be very clear in the IEP, ETR, etc. if a child benefits from therapeutic restraints, requires safety-related restraints (e.g. vehicle harness), etc.

46. Affordable Care Act

47. Affordable Care Act • Pay-or-play mandate for employers has been delayed one year. • Although the Affordable Care Act (ACA) is set to take effect January 1, 2014, employers have one more year before having to prove they are providing the required health care coverage to employees. • On July 9th, the IRS issued a formal announcement that the Affordable Care Act’s employer pay-or-play mandate will be delayed until January 1, 2015. • When the pay-or-play mandate does kick into effect beginning January 1, 2015, districts must meet the minimum required coverage or pay heavy penalties. • In general, ACA requires that all large employers provide minimum essential coverage to at least 95% of full-time time and full-time equivalent employees. • Please note that if your plan year does not run on a calendar year basis, you may be able to avoid paying penalties until the first day of your plan year in 2015.

48. Affordable Care Act • “Large Employer” means: • Employers with at least 50 full-time and/or full-time equivalent employees • “Full-time employee” means: • Employed for an average of at least 30 hours of service per week for a given month or 130 hours per month • Each hour for which the employee is paid, or entitled to payment, for performance of duties is counted. • In addition, each hour for which an employee is paid, or entitled to payment, on account of a period of time during which no duties are performed due to vacation, holiday, illness, incapacity, jury duty, military duty, or leave of absences is counted. • “Full-time equivalent employee” means: • Each full-time equivalent employee is counted as one full-time employee. • In calculating the number of full-time equivalent employees for a given month, an employer must: • Add up the total number of hours of service for all employees who are not employed on average at least 30 hours of service per week • Divide that number by 120 • Contracted employees will not be included in the district’s calculation of full-time employees, but contracting agencies may include increased fees for the additional accounting and if the agency is required to increase its health care coverage. In addition, districts will be required to provide the contracting agency with an accounting of hours worked by contracting employees.

49. Affordable Care Act • ACA also prohibits discrimination in favor of highly compensated individuals. • This includes providing different eligibility rules and/or benefit levels in favor of highly compensated individuals. • Employers for non-self-insured plans that violate the discrimination component may be subject to civil lawsuits with penalties of $100 per day per employee discriminated against. (Self-insured plans have a different penalty.) • However, in 2011 the IRS has delayed enforcement of this prohibition until it issues further guidance on how employers can comply.

50. Affordable Care Act • Employers who issued more than 250 W-2 forms in the prior tax year must report the aggregate cost of employer-sponsored group health plan coverage on their employees’ W-2 forms. • This applies regardless of who actually pays for the coverage. • Certain types of coverage are exempted, including coverage under a Health Reimbursement Arrangement, coverage for long-term care, and coverage under a multi-employer plan. • Effective October 1, 2013, employers are required to notify employees of the availability of the health insurance marketplace (i.e. exchanges). • Employers must provide employees (regardless of plan enrollment status or part-time/full-time employee status) with a written notice informing them of their coverage options. • New employees must receive the notice within 14 day of hire. • Ongoing employees should receive this notice by October 1st. • Sample forms have been provided from the Department of Labor: • -Model http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf • -COBRA Model http://www.dol.gov/ebsa/modelelectionnotice.doc