PDQ November 2015

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In this issue: Homeless student dispute resolution process • Bill allows districts to maintain emergency inhalers • Drones • Transportation policy update • Changes to GED requirements • Academic prevention/intervention services policy update • Sample policies included with this issue

Homeless student dispute resolution process

by Kenna S. Haycox, policy consultant

The purpose of the McKinney-Vento Homeless Assistance Act (42 USC Section 11431 et seq.) is to ensure that all children and youth have equal access to the same free and appropriate public education (including preschool education) as non-homeless children and youth. It is important for your district to be aware of, and fulfill, its obligations for serving homeless students. Let’s take a look at some of the requirements under the McKinney-Vento Act.

Districts are required to develop, review and revise policies to remove barriers to the enrollment, attendance and success in school that homeless children may experience. Districts also must provide them with the opportunity to meet the same challenging state content and state student performance standards to which all students are held. The district may not segregate homeless students into separate schools or programs in a school based on the student’s status as homeless. Homeless students also must be provided with education, nutrition and transportation services that are at least comparable to the services provided to non-homeless students.

To ensure compliance, each district must appoint a homeless education liaison. The local liaison serves as a primary contact among homeless families and school staff, district personnel, shelter workers and other service providers. The liaison coordinates services to ensure that homeless children enroll in school and have the opportunity to succeed academically. The liaison is required to fulfill several responsibilities as outlined in federal law, one of which is mediation of enrollment disputes.

We recently have held discussions with the Ohio Department of Education (ODE) about how to best assist districts in serving homeless students, as well as how to best document the procedures in place for assisting these students in compliance with statutory requirements. An area where ODE representatives have, at times, seen a lack of documentation is the dispute resolution process. It is important to understand what steps must be taken for mediating enrollment disputes, and how to document these procedures.

To the extent feasible, districts are to keep a homeless child or youth in the school of origin, except when doing so is contrary to the wishes of the child or youth's parent or guardian.

Federal law requires the following steps be followed when a dispute arises over school selection or enrollment in a school:

• the child must immediately be admitted to the school in which enrollment is sought, pending resolution of the dispute;

• the parent or guardian of the child must be provided with a written explanation of the school's decision on school selection or enrollment, including the rights of the parent, guardian or child to appeal the decision;

• the child, parent or guardian must be referred to the district-designated homeless liaison, who must carry out the dispute resolution process in as expeditious a manner as possible after receiving notice of the dispute;

• in the case of an unaccompanied child, the homeless liaison must ensure that he or she is immediately enrolled in school pending resolution of the dispute.

ODE created a model dispute resolution policy outlining the Ohio-specific process. The policy states that disputes should be resolved at the district level rather than the school level. The process, allowing for impartial and complete review, should be as informal and accessible as possible. The individual should be able to initiate the resolution process directly at the school he or she chooses and the district liaison’s office. Additionally, the district should inform the individual that written or oral documentation to support district views can be provided. The written documentation provided to youth and parents should be complete, as brief as possible, simply stated and provided in language individuals can understand.

In addition to federally required steps for resolving enrollment disputes, the ODE policy includes involvement of the ODE homeless education coordinator if the dispute continues after the district renders its decision. The district homeless liaison must help the parties involved present the situation to the ODE homeless education coordinator, who will recommend a decision for distribution to the parties in the district. If the dispute continues, final appeal is made to the state superintendent of public instruction.

Policy JECAA, Admission of Homeless Students, is required. Part of the policy states the district will comply with the ODE plan and state and federal laws, including the dispute resolution policy. While many districts have written procedures for enrollment dispute resolution in place, some are lacking documentation. To help districts with documentation, we have added a new regulation, JECAA-R, Admission of Homeless Students (Enrollment Dispute Resolution Process). This regulation provides the needed dispute resolution process and documentation.

ODE’s homeless education staff is available to help districts serve homeless students, including helping with enrollment dispute procedures in serving homeless students. You are encouraged to contact ODE for assistance. This contact can happen even before an enrollment dispute is appealed to ODE following a district decision. Earlier involvement in the process can help you better serve homeless students in your district.

A tool kit for homeless liaisons is available at http://center.serve.org/nche/pr/liaison_toolkit.php.

ODE has several additional resources on serving homeless students available at http://education.ohio.gov/Topics/School-Improvement/Federal-Programs/No-Child-Left-Behind/Program-Information/McKinney-Vento-Homeless-Children-and-Youth-Program.

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Bill allows districts to maintain emergency inhalers

by Kenna S. Haycox, policy consultant

House Bill (HB) 39, which allows school districts to procure inhalers for use in emergency situations, passed the Ohio House and Senate and is awaiting the governor’s signature. The bill will take effect 90 days after the governor’s signature.

The inhalers may be metered-dose or dry-powder inhalers, and may include spacers, holding chambers or other devices that attach to improve the delivery of medication.

District requirements

Ohio Revised Code (RC) Section 3313.7113, as enacted by HB 39, allows the board of education of each city, local, exempted village or JVSD to obtain inhalers for use in emergency situations. Community schools (RC 3314.144), science, technology, engineering and math (STEM) schools (RC 3326.30), college preparatory boarding schools (RC 3328.30), nonpublic schools (RC 3313.7114) and camps (RC 5101.77) also are authorized to procure inhalers.

The board may procure inhalers to be used in emergency situations. RC 3313.7113 specifies that school districts choosing to procure inhalers under this code section are not liable for damages in a civil action arising from an act or omission associated with procuring, maintaining, accessing or using inhalers under the bill unless the act or omission constitutes willful or wanton misconduct. It also specifies that these provisions do not eliminate, limit or reduce any other immunity or defense the district may be entitled to under the existing Political Subdivision Sovereign Immunity Law (RC 2744) or any other provision of Ohio Revised Code or state common law.

Districts that choose to procure inhalers under RC 3313.7113 are encouraged to maintain at least two inhalers at all times in each school. If a board authorizes procuring inhalers, the superintendent is required to adopt a policy governing the maintenance and use of them.

It is important to note the language should be included in a district-level policy/procedure. Be aware that the procedures outlined under RC 3313.7113 apply to inhalers obtained by the school district under this section of state law. An inhaler prescribed to an individual student should be managed in accordance with the student’s individual prescribed protocols, the district administration of medications policy and the provisions of RC 3313.716.

Prior to adopting an inhaler policy, the superintendent must consult with a licensed health professional authorized to prescribe drugs. The policy adopted under this section must:

• include a prescriber-issued protocol specifying definitive orders for inhalers and the dosages of medication to be administered through them, number of times each inhaler may be used before disposal and the methods of disposal;

• identify one or more locations in each school operated by the district where the inhalers must be stored;

• specify the conditions under which an inhaler must be stored, replaced or disposed;

• specify individuals employed or under contract with the board (including a school nurse or athletic trainer) who may access and use an inhaler in an emergency;

• specify any training authorized employees (other than a school nurse or athletic trainer) must complete before being authorized to access and use an inhaler;

• identify the emergency situations, including when an individual exhibits signs and symptoms of asthma, in which authorized individuals may access and use an inhaler;

• require that assistance from an emergency medical service provider be requested immediately after an inhaler is administered by someone other than a licensed health care professional;

• specify individuals, in addition to students, school employees or contractors, and school visitors to whom a dosage of medicine may be administered through an inhaler in an emergency situation, as defined by the policy.

Based on the policy requirements, it is evident why the superintendent is required to consult with a licensed health professional prior to policy adoption. In particular, care should be taken when identifying emergency situations in which an inhaler can be used. These guidelines should be drafted carefully with assistance from a professional, and, if in doubt, districts may need to work with board counsel. In addition, if districts want to specify additional individuals outside those outlined in state law to whom the inhaler may be administered in case of emergency, board counsel should be consulted.

Any district that chooses to obtain inhalers under this section must report each procurement and occurrence in which an inhaler is used from a school’s supply to the Ohio Department of Education.

Donations of inhalers

Districts may accept donations of inhalers from wholesale distributors of dangerous drugs or manufacturers of dangerous drugs, as defined by state law, and may accept donations of money from any person to purchase inhalers.

Policy implications

Whether to have emergency inhalers on hand is a local decision. Districts are not required by law to participate in this program, but it is something to consider in fostering a safe school environment. If you move forward with the inhaler program, ensure the board authorizes it and the superintendent develops and implements a policy that meets the requirements of state law. Remember, there is no board policy requirement for participating in the program. Additionally, it is important to remember that RC 3317.7113 specifically requires the superintendent, not a designee, to develop this policy. Make sure the superintendent-developed policy meeting the state law requirements is in place prior to using emergency inhalers in the district.

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Drones

by Megan Greulich, policy consultant

OSBA has received calls requesting sample policy language on drones. While this hot topic will likely garner even more discussion over the coming months, there currently is no sample board policy language addressing the issue. Let’s consider some of the relevant resources available and why board policy may or may not be appropriate at this point.

There has been much discussion about using drones. On the federal level, most of the discussions are related to flying commercial drones. In February, the Federal Aviation Administration (FAA) released a Notice of Proposed Rulemaking (NPRM) for small, unmanned aircraft systems (UAS). The FAA’s NPRM provided a 60-day window for public comment on the proposed rules, which closed April 24. More detail on the Small UAS NPRM can be viewed at www.faa.gov/uas/nprm. Again, these rules deal mainly with using drones for commercial purposes. In terms of drones for recreational use, the FAA Modernization and Reform Act of 2012 applies. The act sets specific requirements for recreational use of UAS, and can be viewed at www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.

While FAA has taken steps to regulate UAS at the federal level, there also have been attempts to regulate use at the state level. Currently, there are three bills that have been introduced in the Ohio General Assembly on the use of drones. The legislation would regulate the use of drones near airports; prohibit drone use for criminal activity; and outline potential loans and grants for airport capital improvements that could potentially relate to UAS technology. With the legislative process only beginning, it is uncertain whether any changes will impact schools.

Beyond the state and federal level conversations, the Ohio High School Athletic Association (OHSAA) has released guidance for schools on drone use during athletic events. For the 2015-16 school year, OHSAA added a section under “media relations” banning the use of drones at all OHSAA tournament contests. The language allows districts to adopt their own procedures for drone use at regular-season contests.

Revisions appear in the September 2015 OHSAA photography regulation updates and state that using UAS is not permitted anywhere within the entire athletic facility during any OHSAA tournament contests, beginning one hour before the contest is scheduled to start. The prohibition includes indoor and outdoor contests. As previously mentioned, districts can permit use of UAS at regular-season contests if approved by the host institution, which (if allowing) would accept all liability and confirm the UAS complies with local, state and federal regulations. In issuing this guidance, OHSAA also has released a sample resolution boards can approve relating to the prohibition. This resolution language does not belong in board policy, but allows the board to act and determine whether to allow drones at regular season events.

Districts choosing to allow the use of drones should carefully consider the potential pros and cons. Will you allow the public to use drones on school property? Will you only permit the use of drones by the district on district property? What potential liability is associated with use of drones? Are there other legal implications (for instance, the Family Education Rights and Privacy Act)? These are all great questions to discuss with your board counsel in determining what standard to set in the district. In other states, some school districts have established policies disallowing the use of drones on or over school property during school hours and at district-sponsored events, unless the superintendent makes an exception. At this point, with little to no legal standard upon which to rely, it is best to work with board counsel if you choose to develop language.

As you can see, there are many considerations for regulating drones. Again, if you’d like to create board policy on this topic, it’s best to work with board counsel to ensure you’ve considered all potential legal implications. It’s also a good idea to keep an eye out for legal developments that may create a standard for districts to rely on in developing related policies. We will continue to monitor legal developments and related guidance, and provide sample language when necessary guidance and standards become available.

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Transportation policy update

by Kenna S. Haycox, policy consultant

Student transportation is an important part of district operations. Your board policies should clearly communicate some of the general requirements for student transportation. Our policy and transportation consultants have been working together to ensure that our model transportation policies clearly communicate these requirements. Some revisions, which are available for download, have been made to several of the policies. Let’s review them.

Student transportation services

Policy EEA, Student Transportation Services, is your big-picture policy for student transportation. The revisions more clearly reflect that the district provides transportation in accordance with state law, and some districts may not provide additional transportation beyond what is required by statute (in other words, to high school students). Districts are prohibited from charging students fees for routine, district-provided transportation and nonroutine transportation provided during the school day (Ohio Administrative Code (OAC) 3301-83-24). Language has been added to reflect this prohibition. The notes section of the policy also has been updated to provide more information on transportation to community, STEM and private schools (Ohio Revised Code (RC) Section 3327.01). It is important to remember that such transportation must be provided on the same basis as is provided to resident students. Essentially, if the district goes beyond what is required by state law — for example providing transportation to students in grades nine through 12 — then eligible students attending community, STEM and private schools also must be provided transportation. The 30-minute travel time rule still applies here. When you are transporting to these schools, make sure you completely review the statutory requirements for both transportation (RC 3327.01) and payment in lieu of transportation (RC 3327.02).

Eligibility zones

The language stating transportation of high school students is optional has been removed from policy EEAA, Eligibility Zones. The policy now outlines transportation required by state law (RC 3327.01), but still allows flexibility for the board to create exceptions to the established eligibility zones. The new notes section reiterates some of the statutory requirements for pupil transportation.

School bus safety program

One consideration in your school bus safety program is placement of bus stops. There are several factors to consider, one of those being the distance riders may be required to walk to a stop. Kindergarten through eighth-grade students may be required to walk up to one-half mile to a designated stop (OAC 3301-83-13). If the district provides transportation to students in grades nine through 12, these students may have to walk farther. There are no statutory limits related to these students. Language has been added to policy EEAC, School Bus Safety Program, to clearly communicate these limits. Additionally, some language has been removed that more appropriately belongs at the district level and should be considered in determining the placement of stops. The language on emergency evacuation drills also has been updated to reflect the annual evacuation drill requirements.

Student conduct

Students may have bus-riding privileges suspended in accordance with a policy adopted by the board (RC 3327.014). To be able to suspend students, most districts have adopted Policy EEACC, Student Conduct on District-Managed Transportation (previously titled Student Conduct on School Buses) (also JFCC), and the accompanying regulation EEACC-R, Student Conduct on District-Managed Transportation (previously titled Student Conduct on School Buses) (also JFCC-R). This policy and regulation have been updated to apply conduct expectations to any district-managed transportation, not just school buses. In addition, the updates to the regulation more clearly reflect the specific requirements of OAC 3301-83-08.

Recording devices

EEACCA, Recording Devices on Transportation Vehicles (previously Video Cameras on Transportation Vehicles), has been revised to reflect the practice of some districts using audio recording in addition to video. An important reminder as you consider recording students on transportation vehicles is to make sure to remain in compliance with state and federal law. You also need to notify individuals that they may be recorded. If you use audio and video on buses, notify students that both are being used.

Drug testing

EEACD, Drug Testing for District Personnel Required to Hold a Commercial Driver’s License, has been updated to specify that the drug and alcohol testing program must comply with both federal and state regulations.

Nonroutine use

Buses may be used for purposes other than regularly scheduled routes to and from school. This is considered nonroutine transportation (OAC 3301-83-16). Policy EEAD, Nonroutine Use of School Buses (previously Special Use of School Buses), has been reorganized to clearly define nonroutine transportation. In addition, the language on fees has been revised to reflect the ability to charge fees to groups. Remember, you cannot charge fees to individual students for field trip transportation provided during the school day (OAC 3301-83-24). The policy also includes additional language prohibiting blocking emergency exits.

Transportation in private vehicles

EEAE, Student Transportation in Private Vehicles, has been updated to clarify when private vehicles can be used. Private vehicles may not be regularly used for transporting students, except in limited circumstances and when the vehicle, driver and purpose meet the requirements outlined in OAC 3301-83-19. There are times when an emergency situation requires occasionally transporting a student in a private vehicle, perhaps an ill student unable to get home any way other than an administrator driving him or her. The policy now more clearly communicates the difference between these two types of personal vehicle use. It is important to remember you cannot use private vehicles regularly unless all the requirements of the administrative code are met.

Details for daily operations, procedures and requirements for student transportation should be clearly outlined in district-level policies and procedures. However, having strong, big-picture board policies help communicate general expectations from the board and clearly states some required language, including school bus safety and drug testing requirements. These revisions better communicate some of this information, and the revised board-adopted policies should be communicated to transportation directors and supervisors, since they are responsible for day-to-day implementation of such policies and procedures.

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Changes to GED requirements

by Megan Greulich, policy consultant

House Bill (HB) 64 recently revised the General Educational Development (GED) testing requirements. The revisions became effective Sept. 29. Let’s take a look at the changes to requirements for pursuing a GED.

The changes appear in Ohio Revised Code (RC) Section 3313.617, and provide that students who are 16 or 17 years old may apply to the Ohio Department of Education (ODE) to take the GED tests, as long as such students have not received a high school diploma or honors diploma awarded under certain RC provisions. To apply, such students must submit an application that includes written approval from the student’s parent, guardian or court official and the student’s official high school transcript. The transcript is required, at a minimum, to include the previous 12 months of the student’s enrollment in a program approved to grant a high school diploma.

Once the necessary documentation is submitted, ODE decides whether to approve or deny the student’s application for GED testing. However, ODE is required to approve the application if the student meets both of the following criteria:

• The student has been continuously enrolled in a program approved to grant a high school diploma for at least one semester and attained an attendance rate of at least 75% during that semester.

• The student shows good cause, as determined by rules adopted by the State Board of Education.

In another provision, the statute requires the State Board to adopt rules for administering the new provisions. The rules must include details about what qualifies as “good cause.” If the student’s application is approved, the statute requires the student to remain enrolled in school and maintain an attendance rate of at least 75% until either the student passes all required GED test sections or the student is 18.

The statute also provides that a student meeting any of the following criteria shall be permitted to take the GED tests. The student:

• has a bodily or mental condition described by RC 3321.04(A)(1);

• is receiving or has completed the final year of homebound instruction authorized under RC 3321.04(A)(2);

• is moving or has moved out of state after previously attending school in the state;

• has an extreme, extenuating circumstance as determined by ODE that requires the student to withdraw from school.

If the student takes the GED tests and fails to attain scores required to earn a high school equivalence diploma as defined by RC 5107.40, the student shall only be required to retake the specific test or tests that he or she failed. Students retaking a specific test shall only be responsible for the cost of that specific test and not the entire battery of tests, unless that student is retaking all tests.

Policy JEA, Compulsory Attendance Ages, refers to the GED option, but does not go into nearly this much detail. It’s important to understand the new requirements for GED testing applications, but there are no necessary board policy revisions associated with them. The notes section of policy JEA has been updated for informational purposes to refer to the changes and relevant RC section.

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Academic prevention/intervention services policy update

by Megan Greulich, policy consultant

OSBA recently received an influx of questions on adopting board policy language for academic prevention/intervention services. Following is some information regarding the statutory board policy requirements.

The board policy requirement for this topic appears in Ohio Revised Code Section 3313.6012, which requires the board of each city, exempted village and local district to adopt a policy governing the conduct of academic prevention/intervention services for all grades and all schools throughout the district. The provision goes on to state that the board shall update the policy annually. This is where recent confusion has emerged. An annual update of the policy is not a requirement that the board annually adopt a new policy or readopt the current policy. There is nothing preventing the board from readopting the policy on an annual basis, but let’s consider how the process should look.

In most cases, provisions require an annual or periodic review of board policy. In this case, the use of the word “update” rather than “review” is a bit more ambiguous. Because the term update has been used, OSBA’s recommendation is that the topic should come before the board and appear on the board’s agenda annually. The superintendent should review the policy and provide any necessary updates to the board at that time. If updates are necessary, the board should act to readopt the policy language with those updates. If no updates are necessary, the board needn’t act to readopt the policy language.

This process meets the requirement that the board update the policy annually. Language on this topic is included in policy IGBE, Remedial Instruction (Intervention Services), which is available for download with this PDQ issue. There are no necessary changes to this board policy. It is included for informational purposes only to highlight reference to the relevant legal standard. The policy language states that the board directs the superintendent to evaluate the remedial education programs and report to the board each school year as to their effectiveness in maintaining minimum levels of student proficiency. Be sure this evaluation is happening and the superintendent’s recommendations are coming before the board annually so you can adequately determine ir there are necessary updates to existing policy language.

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