PDQ February 2019

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In this issue: New absence notification requirements • New developments in school discipline • Changes to liability • Additional lame-duck session changes • Uniform guidance update • Alternative graduation pathways extended • School resource officer training modifications • Concealed carry signage • Sample policies included with this issue

New absence notification requirements

by Kyle E. Lathwell, policy consultant

House Bill (HB) 66, effective April 5, enacts Ohio Revised Code (RC) 3321.141, which addresses parent notification of student absences. Under the new law, school attendance officers or their designees must make at least one attempt to contact the parent, guardian or other person having care of a student about that student’s unexcused absence within 120 minutes of the start of the school day. The law allows for the notification to be made in one of many ways, which include:

a telephone call placed in person;
an automated telephone call via a system that includes verification that each call actually was placed;
a notification sent through the school’s automated student information system;
a text message;
an email;
an in-person visit;
any other notification procedure that has been adopted by a resolution of the board of education.

Schools are not required to notify a parent who notifies the school of the student’s absence within the first 120 minutes after the beginning of the school day. In addition, an immunity provision is included in the new law, which states that a school district or any officer, director, employee or any member of the district board of education is not liable in a civil action for injury, death or loss to person or property from an employee’s action or inaction in good faith compliance with the law.

Further, this section of law does not apply to students who are in home-based, online or internet/computer-based instruction and instances when a student was not expected to be in attendance due to that student’s participation in off-campus activities, including but not limited to, participation in a College Credit Plus program.

Policy implications
Policies JED, Student Absences and Excuses, and JEE, Student Attendance Accounting, were both updated as a result of this new requirement and have been included with this issue of PDQ. Note that policy JED, Student Absences and Excuses, also reflects changes addressed elsewhere in this issue.

Districts should review the new requirements to ensure appropriate procedures are in place for compliance with HB 66 provisions moving forward.

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New developments in school discipline

by Kyle E. Lathwell, policy consultant

Makeup assignments
The August 2018 issue of PDQ addressed House Bill (HB) 318 changes to student discipline. One of the topics covered at that time was new language about the ability to make up assignments missed due to suspension. Specifically, it required districts to permit students to complete any classroom assignments missed due to both in-school and out-of-school suspensions.

HB 491, effective March 20, replaces the HB 318 provisions about makeup work with a requirement that each district board adopt a policy establishing parameters for completing and grading assignments missed because of a student’s suspension. The bill provided some details about what must now appear in policy.

Specifically, the policy must provide the student an opportunity to do both of the following:

complete any classroom assignments missed because of the suspension;
receive at least partial credit for the completed assignment.

The policy may permit grade reductions on account of the student’s suspension, and the policy must prohibit the receipt of a failing grade on a completed assignment solely on account of the student’s suspension (Ohio Revised Code (RC) 3313.66).

Mental health consultation requirement
As a result of HB 318, RC 3313.668 requires principals to consult with a mental health professional under contract with the district or school, whenever possible, prior to suspending or expelling a student in grades pre-K through three. If the events giving rise to the discipline indicate a need for additional mental health services, the principal or mental health professional must, without financial burden to the district or school, help the student’s parent or guardian locate a provider or obtain those services. This would include a referral to an independent mental health professional.

HB 477 become effective April 8 and addresses the potential liability related to the procurement of mental health services for the students referred to above. Under amended RC 3313.668, a school district, school board member or district employee is not liable for damages in a civil action for injury, death or loss to person or property allegedly arising from a district employee’s decision to not procure mental health services for a suspended or expelled student. There is an exception to this liability protection where the decision is made with malicious purpose, in bad faith or in a wanton or reckless manner.

This new language does not eliminate, limit or reduce any other immunity or defense to which the district, board member or employee may be entitled to under the law.

Policy implications
Policies JED, Student Absences and Excuses, and JGD, Student Suspension, have been updated to reflect the new language about students making up work missed due to a suspension. Note that policy JED, Student Absences and Excuses, also reflects changes addressed elsewhere in this issue.

JGE, Student Expulsion, is included for informational purposes related to the mental health consulting revisions.

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Changes to liability

by Kenna S. Haycox, senior policy consultant

House Bill (HB) 291 and HB 491 both impact Ohio Revised Code (RC) provisions for treasurer liability. These bills are effective March 20.

Bonding
Previously, specified individuals were required to secure an individual surety bond before entering into their duty to cover losses caused by the fraudulent or dishonest actions of and the failure to perform a duty. RC 3.061, as enacted by HB 291, change this requirement. Now, a school district can adopt a policy, by ordinance or resolution, to allow for the use of an employee dishonesty and faithfulness of duty policy rather than a surety bond. If the district wants to allow for this, the policy must be in effect and apply to the officer, employee or appointee before the beginning of the individual’s term of office or employment, and the affected individual cannot commence the discharge of duties until coverage is documented.

If the district adopts such a policy, the affected employee will be considered qualified to hold the office or employment, without given bond, on the date the oath of office is taken, certified and filed as required by law. The coverage amount must be equal to or greater than the maximum amount of the bond otherwise required by law. If there is no statutory minimum amount, the amount of coverage must be agreed upon by the board. If the board does not adopt a policy allowing for the use of an employee dishonesty and faithfulness of duty policy, the statutory surety bond provisions apply.

These changes directly impact the requirements for treasurer surety bonds in RC 3313.25. If the district does not use the new option for an employee dishonesty and faithfulness of duty policy, the treasurer still must execute a surety bond before entering into the duties of his or her office and file this bond with the board president and county auditor.

Liability
HB 491 adds additional provisions for treasurer liability. Under the revised provisions, school district and ESC treasurers are exempt from liability of loss of public funds when their official duties have been performed without negligence or wrongdoing. The revisions essentially add exceptions to the strict liability for treasurers when the treasurer performs all official duties with reasonable care or when the loss results from their reliance on the accuracy of various nonfinancial information or data. Now, under the revised provisions, the treasurer’s liability is limited to situations where the loss of funds is a result of the treasurer’s own negligence or other wrongful act.

Verifying teacher licensure
HB 491 revises the process a treasurer must follow to pay a teacher, and the changes are designed to address an issue many districts have been working through over the past few years. HB 491 removes language from RC 3319.36 requiring the teacher to file the teaching certificate with the treasurer and prohibiting the treasurer from paying the teacher unless this requirement is met. Under RC 3319.36, as revised by HB 491, the treasurer may now only pay a teacher when the following conditions are met:

the treasurer receives a written statement from the superintendent, or his or her designee, that the teacher has filed with the superintendent or designee reports required by the State Board of Education, school district board of education or superintendent;
the treasurer received a written statement of the superintendent, or his or her designee, that that teacher has filed with the superintendent or designee a legal educator license or true copy of it to teach the subjects or grades taught, with the dates of validity.

An additional exemption from liability for loss of public funds is granted for payments made to a teacher who does not have the proper paperwork on file unless the loss results from negligence or wrongdoing. This exemption also applies to the superintendent.

HB 491 includes language that the amendments related to liability are remedial in nature and, therefore, apply to any proceeding, investigation or citation involving a school treasurer that, as of the effective date of the act, have not reached final adjudication, including all available appeals. Districts with an active situation impacted by these changes should work with legal counsel to determine the impact of these revisions.

Policy implications
DH, Bonded Employees and Officers, has been updated to include an option for districts choosing to use an employee dishonesty and faithfulness of duty policy in lieu of a surety bond. Districts that do not want to use this option do not need to update this policy.

BCC, Qualifications and Duties of the Treasurer, has been updated to remove the function of obtaining and filing teaching certificates. Many districts have customized this policy or may use a district-specific policy. If your language varies from this sample policy, review your local language to determine if any updates are necessary.

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Additional lame-duck session changes

by Kyle E. Lathwell, policy consultant, and Kenna S. Haycox, senior policy consultant

Youth suicide prevention training
Districts are required to provide training on a variety of topics through in-service training. Ohio Revised Code (RC) 3319.073 sets forth many of these obligations, and this list has grown through the years.

House Bill (HB) 502, effective March 22, adds language to RC 3319.073, which requires boards to provide training in youth suicide awareness and prevention programs once every two years to the following school employees:

nurses;
teachers;
counselors;
school psychologists;
administrators;
any other personnel whom the board determines appropriate.

Policy JHG, Reporting Child Abuse and Mandatory Training, is where you will find these training requirements iin OSBA policy. It has been updated to include the new requirement noted above and is available for download with this issue. In reviewing the policy, we determined that a few additional changes were in order to strengthen the policy overall.

Use of electronic communications devices by students
RC 3313.753 authorizes boards to prohibit students from carrying electronic communications devices in any school building or on any school grounds or district premises. The policy may provide for exceptions to this prohibition and must specify any disciplinary measures that will be taken for violation of the policy. If the board has adopted a policy under RC 3313.753, it must be posted in a central location in each school building and made available to parents and students upon request.

HB 477 revised the definition of electronic communications devices by removing references to a pocket pager. An electronic communications device, for purposes of RC 3313.753, is now defined as any device that is powered by batteries or electricity and is capable of receiving, transmitting or receiving and transmitting communications between two or more persons or a communication from or to a person.

Policy implications
If you want to prohibit or establish parameters for students carrying their electronic communications devices, the board must adopt a policy.

Most districts address parameters for when a student’s device can be used and the consequences for violating these parameters in student handbooks and student code of conduct. JFCK, Use of Electronic Communications Equipment by Students, has been updated and is included for download with this issue to reflect HB 477 changes and provide more flexibility for districts in addressing this in detail in student handbooks. This policy can be locally customized if desired.

We previously offered two versions of this policy, including one that completely prohibits students from having electronic communications devices at all (even in lockers) on school property. Recognizing most districts do not use this option, we have removed this version. The notes section on the updated policy provides recommended language that can be used by districts that want to completely prohibit possession in any manner on district property, or you can contact one of OSBA’s policy consultants for help in crafting such language.

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Uniform guidance update

by Kenna S. Haycox, senior policy consultant

Federal funds that districts receive must be managed in accordance with the federal uniform grant guidance audit requirements. The rules are outlined in 2 Code of Federal Regulations (CFR) 200 and emphasize the need for strong financial management systems and other internal controls aimed at controlling fraud, waste and abuse. More detailed information on your uniform guidance requirements is available in the August 2018 issue and November 2018 issue.

As we continue to work through these new requirements, we are able to better understand what auditors and the Ohio Department of Education (ODE) will be looking for. As a result of several ODE food service audits, we determined some revisions to our uniform guidance policies will better meet district needs.

Cost and price analysis
When procuring goods or services with federal funds, 2 CFR 200.323 requires you to perform a cost or price analysis in connection with every procurement action in excess of the Simplified Acquisition Threshold (currently $250,000) including contract modifications. This estimate must be made before receiving bids or proposals. The method and degree of analysis is dependent on the facts surrounding the particular procurement situation. Local procedures should document what this process looks like at the local level.

Women, minority and labor surplus area firms
When procuring goods or services with federal funds, the district must take all necessary affirmative steps to ensure that minority businesses, women’s business enterprises and labor surplus area firms are used when possible (2 CFR 200.321). When taken, these affirmative steps must include:

placing qualified small and minority businesses and women's business enterprises on solicitation lists;
ensuring that small and minority businesses and women's business enterprises are solicited whenever they are potential sources;
dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses and women's business enterprises;
establishing delivery schedules, where the requirement permits, that encourage participation by small and minority businesses and women's business enterprises;
using the services and assistance, as appropriate, of organizations such as the Small Business Administration and the Minority Business Development Agency of the U.S. Department of Commerce;
requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed above.

Districts should confirm that district-level procedures verify the district will take these steps when possible. This may include documenting how you provide this information to the specific entities, verifying they are on your solicitation lists and any of the other items above that you use. How this is done is beyond the scope of board policy. However, make sure you have district-level documentation verifying you are aware of and comply with this requirement when possible.

Conflict of interest
2 CFR 200.318 requires districts to maintain written standards of conduct covering conflicts of interest and governing the performance of employees engaged in the selection, awarding and administration of contracts. No employee, officer or agent can participate in the selection, award or administration of a contract supported by a federal award if he or she has a real or apparent conflict of interest as further defined in the rules.

Additionally all officers, employees and agents of the district are prohibited from soliciting or accepting gratuities, favors or anything of monetary value from contractors or parties to subcontracts. The district may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct must provide for disciplinary actions to be applied for violations of such standards by officers, employees or agents of the district. Most districts refer to guidance from the Ohio Ethics Commission (OEC) and follow the Ohio Ethics Law when determining whether to establish a nominal value threshold. If you want to create a threshold your policies, work with your legal counsel to determine an appropriate amount based on OEC guidance.

Policy implications
DECA, Administration of Federal Grant Funds, has been updated to better clarify the conflict-of-interest requirements and the requirements related to cost or price analysis and obligations related to minority businesses, women’s business enterprises and labor surplus area firms. Also remember to check your local policies and procedures to ensure how you will fulfill these obligations is clearly documented in written procedures.

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Alternative graduation pathways extended

by Kenna S. Haycox, senior policy consultant

House Bill (HB) 491 extends alternative graduation pathways to the classes of 2019 and 2020. The provisions appear in the temporary section of the law and extend a revised version of the alternative pathways provided to the class of 2018. The Ohio Department of Education (ODE) developed a fact sheet to address frequently asked questions.

The alternative pathways are designed for students not meeting one of the three pathways to graduation: earning 18 graduation points on Ohio’s state tests; earning an industry-recognized credential or group of credentials totaling 12 points and earning a cumulative score of 13 on the WorkKeys test; or earning remediation-free scores in math and English language arts on the ACT or SAT.

For students not meeting one of these pathways, the following alternatives are in place. The options apply based on when a student first entered ninth grade. Students also are subject to meeting all requirements for courses and additional criteria for graduation set under state law and by the student’s board of education.

Students who entered ninth grade between July 1, 2014, and June 30, 2016 (classes of 2018 and 2019), are eligible to use one of these alternative options. Students who entered ninth grade between July 1, 2016, and June 30, 2017 (class of 2020), are eligible to use one of two modified graduation options.

An ODE FAQ document addresses several questions related to the impact of these alternative pathways on local districts. A few of these are highlighted below:

Pathways are available based on when a student entered ninth grade. Districts should review local policies for grade placement for determining which criteria must be completed during a student’s senior year and what is considered a student’s senior year. OSBA typically sees this information addressed in student handbooks.
Districts are not required to implement programming for students to satisfy one of the alternative pathways. ODE does, however, encourage districts to consider how they can support students in meeting one of the alternative pathways, if necessary.
Students who graduate using one of the alternative pathways will be included as a graduate on the school or district’s state report card.
If a student retakes an exam to fulfill one of the new graduation requirements, the retake exams are included in the school or district report cards under the end-of-course improvement indicator.

Policy implications
The OSBA graduation requirements policies are not specific in the area of the assessment pathways, so no updates are necessary. Districts should review local materials on graduation requirements to determine if any updates are necessary.

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School resource officer training modifications

by Kyle E. Lathwell, policy consultant

Using school resource officers (SROs) to bolster school safety around the state is not new. However, prior to House Bill (HB) 318, which became effective Nov. 2, 2018, there were no specific legal requirements about the use of SROs or their qualifications. HB 318, through Ohio Revised Code (RC) 3313.951, established specific qualifications and training requirements for SROs, among other things, and was addressed in the August 2018 PDQ.

As a reminder, an SRO is any peace officer who is appointed through a memorandum of understanding (MOU) between a law enforcement agency and a school district to provide services to the district. Any SRO providing services to a district on or after Nov. 2, 2018, must have completed a basic training program approved by the Ohio Peace Officer Training Commission and must complete at least 40 hours of SRO training within one year after appointment to the position. SROs who were in their position prior to Nov. 2, 2018, are exempt from the training requirements.

HB 318 stated that this training needed to be provided by one of the following entities: National Association of School Resource Officers, Ohio School Resource Officers Association or a peace officer certified to instruct per the statute.

HB 491, effective March 20, made some revisions to the SRO training provisions. Specifically, the language allowing training to be provided by “a peace officer certified to conduct a course” was removed and replaced with “the Ohio Peace Officer Training Academy.”

The certified training program provided by these entities still must include instruction on the skills, tactics and strategies needed to address the following:

school campuses;
school building security needs and characteristics;
the nuances of law enforcement functions conducted within a school environment, including:
- understanding the psychological and physiological characteristics consistent with the ages of the students,
- understanding the appropriate role of the SRO regarding discipline and reducing the number of referrals to juvenile court,
- understanding the use of developmentally appropriate interview, interrogation, de-escalation and behavior management strategies;
the mechanics of being a positive role model for youth, including appropriate communication techniques that enhance interactions between SROs and students;
providing assistance on topics such as classroom management tools to provide law-related education to students and methods for managing the behaviors sometimes associated with students who have special needs;
the mechanics of the laws regarding compulsory attendance;
identifying the trends in drug use, eliminating the instance of drug use and encouraging a drug-free environment in schools.

The other change made in RC 3313.951, as a result on HB 491, is that the language requiring the Ohio Peace Officer Training Commission to develop and conduct a basic SRO training course and establish criteria for successful completion was removed. Under HB 491, the commission is charged with adopting rules for approving SRO training.

While these revisions to RC 3313.951 do not prompt any policy changes in OSBA’s model policies, they are important to be aware of. As always, districts that include more detail in policy on safety matters will want to review locally adopted policies to ensure that no updates are needed.

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Concealed carry signage

by Kyle E. Lathwell, policy consultant

Ohio Revised Code (RC) 2923.1212 currently requires boards of education to post signs in specific locations that substantially state the following: “Unless otherwise authorized by law, pursuant to Ohio Revised Code section 2923.122, no person shall knowingly possess, have under the person’s control, convey or attempt to convey a deadly weapon or dangerous ordnance into a school safety zone.” These signs are to be posted in a conspicuous location in each building and on each parcel of real property owned or controlled by the board.

House Bill (HB) 228, effective March 28, revises the language that must appear on the signs and removed some of the specificity about where the signs need to be posted. The language quoted above was removed in its entirety.

Amended RC 2923.1212 now states that any board or entity that owns or controls a premises identified as a school safety zone shall post “in one or more conspicuous locations on the premises” a sign that contains a statement in substantially the following form: “Unless otherwise authorized by law, pursuant to the Ohio Revised Code, no person shall knowingly possess, have under the person’s control, convey or attempt to convey a deadly weapon or dangerous ordnance onto these premises.” This restrictive language is not new to all entities required to post signs, but it was not exactly what was prescribed for use by school districts prior to HB 228. The signage requirements are now more uniform.

Policy implications
Policies GBCB, Staff Conduct, and KGB, Public Conduct on District Property, each state that both staff and other persons, unless otherwise permitted by law, are not permitted to bring a deadly weapon or dangerous ordnance into a school safety zone. No updates are necessary to reflect these signage changes.

However, if your policy contains different and/or unique language on this topic, you will want to review the language to determine if any updates are needed. Further, districts will want to look at their existing signage and make certain it meets the standards now set forth in law.

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