Over the past few weeks, our school district clients have reached out to us with very important, thoughtful legal questions. MBM’s education team believes that all of our clients should have access to the answers, so our attorneys have consolidated those questions into the FAQ list you see below. If you have any additional questions about the topics mentioned below, please don’t hesitate to reach out.

Last Updated: June 1, 2020

1. Are School Districts included in the definition of “taxing district” under Act 15 for the purpose of providing property tax relief?

No, under the relevant section of Act 15, a “taxing district” includes cities, counties, boroughs, towns, townships, and incorporated towns.  School Districts are not included in this definition and cannot, as of yet, provide the identified forms of property tax relief.  It is possible that a future bill may amend this to include School Districts.

2. May a teacher record virtual classes and share the recording with students who are unable to attend?

FERPA does not prohibit a teacher from making a recording of the lesson available to students enrolled in the class, provided the video recording does not disclose personally identifiable information (PII) from student education records during a virtual classroom lesson or appropriate written consent is obtained if PII from the education record is included. It is advisable to delete the video recordings or virtual lesson after the period of instruction.

3. If school districts changed their grading system to pass/fail, how will school districts comply with progress reporting requirements for students with IEPs?

School districts should make all reasonable efforts to comply with the requirements of individual students’ IEPs. Districts should develop a plan and set of expectations with input from an individual student’s parents for how progress monitoring toward IEP goals will be conducted, documented and communicated. School districts may document changes to progress reporting processes during the COVID-19 pandemic response. If changes to the reporting of progress are necessary, the District may document through the IEP revision/amendment process or through the issuance of a NOREP.

4. May a school district follow the advertising requirements of Act 15 to conduct a virtual School Board Meeting?

The Act 15 advertising requirements for municipal public meetings do not apply to school districts. Under prior OOR guidance as reported and recommended by our office, the District could continue to advertise in the local newspaper in advance of each remote meeting.  Following OOR’s guidance continues to provide a best practice argument under the Sunshine Act.  However, this results in increased advertising costs. Following Act 15’s guidelines definitely would give school districts another best practices argument under the Sunshine Act.  Under Act 15, advertisements for remote meetings could be in the newspaper OR on the website OR both.  Our recommendation is that the next newspaper advertisement state that all regularly scheduled meetings as previously advertised would be held remotely until further notice with public participation instructions on the website. Then, as Act 15 provides, in advance of each meeting, the website instructions would be changed to reflect the next meeting’s resident participation information.  Since Act 15 literally applies to hundreds of municipalities across the Commonwealth, following its advertising requirements would be a strong argument for compliance with the Sunshine Act.

5. Can we hold our high school graduation in our football stadium so long as we employ social distancing principles?

No.  As of now, Governor Wolf’s stay-at-home order remains in effect and gatherings of ten (10) or more people are prohibited.  The Governor’s office recently announced that beginning on May 8, 2020, the state would begin implementation of a phased program to reduce restrictions on businesses and travel.  However, until a region or county is fully cleared to resume some semblance of normal activities, large gatherings remain prohibited.  Accordingly, School Districts are unable to hold traditional graduation ceremonies and are advised to make alternative arrangements.

6. Are those school employees whose clearances have expired still able to work directly with children since the pandemic has prevented them from renewing those clearances?

The state legislature recently passed House Bill 830, and it is expected that the Governor will sign this bill into law shortly.  House Bill 830 extends the deadline for public school employees to obtain recertification of the clearances required under Section 111(c.1) of the School Code until December 31, 2020.  Subsequent re-certifications would need to be obtained within sixty (60) months of the date of the most recent certification.  It is important to note that the House Bill 830 does not permit new employees who have not already obtained certification to begin working in a school setting, directly with children, without first obtaining the required clearances.  The law only proposes to extend the recertification deadline until the end of 2020.

7.How should districts handle class rank for graduating seniors for this year?

The calculation of class rank is a local district decision. Calculation of GPAs and class rankings are not required and are often controlled by district policy and long-standing practices.  Districts may choose to calculate GPA and class rank for the first four to six weeks of the school year only or attribute different weights to the grading periods. However, any method for calculation of GPA and class rank should be applied to all impacted students equitably.  If a change to the calculation is anticipated, please review your board policies and guidelines and seek assistance on whether a revision to the policy is required. Be sure to inform your community stakeholders as to the basis for the change.

8. What are LEAs’ responsibilities regarding IDEA Child Find requirements during the COVID-19 pandemic response and associated school closures?

An LEA’s responsibility to identify, locate, and evaluate students who have or may be suspected of having a disability and need for special education is ongoing.  However, federal, state, and/or local health and safety orders e.g. “stay-at-home” orders and requirements to socially distance prevent an LEA from conducting or completing an initial evaluation. LEAs should consider updating information on their website regarding contact information and processes for Child Find during the COVID-19 pandemic response.  If written consent is received, discuss with parents that priority must be given to health and safety of everyone and that face-to-face evaluations will not be conducted during any closures nor while social distancing continues to be enforced by local, state, or federal authorities. LEAs should carefully document these communications with parents. LEAs should make a good faith effort to complete relevant components of the evaluation, to the extent practicable, given limitations on face-to-face evaluations. For example, in most cases a records review could be initiated to determine what, if any, additional data is needed to make an eligibility determination.

9. Are School Districts required to continue paying contracted service providers during the COVID-19 pandemic?

Under the recently passed Federal CARES Act, school entities who will receive funding via this legislation are required to continue paying employees and contractors “to the extent practicable” during the pandemic.  Unfortunately, the federal government has not issued any guidance as to what the term “to the extent practicable” actually means.  One Pennsylvania agency, the Office of Open Records, has interpreted the term, as it is used in a state statute, to almost mandate payments.  However, this guidance has not come from the federal government or from a court interpreting the term.  Act 15 of 2020 contained a provision permitting School Districts to renegotiate agreements with contracted service providers to continue payments.  One reasonable course of action is to contact contracted service providers and discuss the possibility of re-negotiating amounts owed under existing agreements.

10. May an employer discipline an employee for social media posts challenging the state and federal governments’ response to the COVID-19 pandemic?

The relevant case law draws a distinction between employee speech that is directed toward a matter of public concern and employee speech which is directed toward private grievances, or which is otherwise made in the course of the employee’s job duties.  Briefly stated, an employee is entitled to a greater degree of protection for statements made while speaking as a member of public on a matter of public concern.  Speech that is made for purposes of political dialogue concerning the pandemic without any calls to incite violence is protected speech.

11. How should LEAs respond to families who have indicated that they will not be able to facilitate the continued instruction options offered by the LEA?

In cases where families have indicated that they are not able to, or unwilling to, facilitate distance learning options, LEAs must consider whether practical barriers to participation have been removed to the extent possible.   LEAs must document ongoing attempts to communicate with the family.  Even in situations such as this, the LEA is responsible for the provision of FAPE.  Even in a situation of refusal, the IEP team will need to determine whether there is any need for compensatory, or additional services upon return to regular school attendance.

12. While Act 13 requires that all school employees be paid at least through December when the law expires, what should a School District do if one of the employees who are called to return to work states they do not want to return due to ongoing concerns of exposure to COVID-19?

Remember that although the School District is most immediately addressing issues related to the extraordinary COVID-19 pandemic, the application of other relevant existing laws must be taken into consideration in addressing these employment related issues.  For example, the Americans with Disabilities Act (ADA) does not grant an employee a general right to refuse work due to a disability, as such would be a total refusal to complete the essential functions of the job. The School District must consider whether the employee’s refusal is reasonable in light of the measures taken to mitigate the risk of COVID-19 in the workplace, whether the employee has a covered disability that must be accommodated, and whether the employee is entitled to leave under all relevant leave laws. This is a complicated analysis that must be applied on a case by case basis based on the factors related to each specific employee to see what, if any, accommodations must be made by the School District.

13. What obligations are imposed on School Districts to protect its returning employees from exposure to COVID-19 when recalled to work?

As a best practice, the School District should undertake and, most importantly, document the following steps, as suggested by OSHA:

  • Assess the level of risk of COVID-19 exposure for each of their employees based on OSHA’s employee exposure chart;
  • Train employees about and enforce rules/policies pertaining to proper workplace sanitation and hygiene;
  • Assess and provide employees with appropriate Personal Protective Equipment;
  • Assess and implement appropriate administrative controls;
  • Assess and implement appropriate engineering controls; and
  • Investigate and address, if necessary, internal complaints from employees about alleged workplace hazards.

Simply put, it is imperative for a School District to demonstrate its good faith efforts to reduce or eliminate COVID-19 hazards in the workplace. Documentation and implementation of these efforts is the key to demonstrating why it is unreasonable for an employee to refuse to return to work.

13. Will School Districts see any legislative assistance to address anticipated school budget shortfalls for next School Year?

At this time, legislation on the state level has focused mainly on tax relief for individuals rather than addressing any shortfalls at the municipal or school district level.  School districts have been advised to decrease their anticipated revenue projections by five percent in order to account for projected lost tax revenues.  Additionally, although school districts may receive money through the recently passed federal CARES Act, a provision in that law permits state governments to offset a school district’s education funding by the amount received under the CARES Act, so school districts are advised not to treat any CARES Act money as additional revenue in their budgets until Pennsylvania decides whether or not it will offset the money.  Moreover, although a proposed stimulus bill in the House of Representatives contains a significant amount of money for local governments, including school districts, it is not clear if the bill will pass due to its significant costs.

14. What legislative assistance programs for School Districts have been proposed so far?

Certain budget related proposals have been proposed in the state legislature, unfortunately for School Districts they are mainly designed to provide some sort of tax relief to individual taxpayers.  One proposal which has been introduced several times is a proposed prohibition on any increases to school district property taxes for the 2020-2021 school year.  It has also been reported that additional relief measures, similar to those contained in the recently passed Act 15 which gave municipalities the option to extend tax discount periods and waive penalty payments, could be extended to school districts.  Moreover, the legislature has passed certain bills related to tax relief for senior citizens, such as the recently passed House Bill 1076, which gives School Districts the option to create programs where senior citizens can volunteer in the school district’s academic programs in exchange for property tax credits.

15. With Governor Wolf’s phased re-opening for Pennsylvania does the yellow phase permit face-to-face evaluations? 

No.  The phased re-opening plan does not change the statewide school closure order until the end of this academic year.

16. How should IEP teams approach compensatory education service provisions for students who are graduating in the spring of 2020?

In Pennsylvania, the receipt of a regular high school diploma terminates a student’s right to a FAPE. Whether a student’s right to a FAPE is terminated by the receipt of a regular high school diploma or aging out, the LEA must provide the student with a summary of academic achievement and functional performance, which shall include a recommendation on how to assist the student in meeting their postsecondary goals (34 CFR § 300.305(e)). However, the federal guidance requiring LEAs to consider a student’s potential need for compensatory services as a result of the COVID-19 pandemic response did not specifically exclude students who graduate in the spring of 2020 but who may have lost skill as a result of the LEA’s inability to offer services during school closures.  Therefore, LEAs are encouraged to review each student’s individual circumstance prior to graduation and appropriately document its decisions through a NOREP/PWN.

17. How should IEP teams make graduation determinations for students whose modified curriculum and graduation were dependent upon the completion of certain activities that were unable to be completed due to the COVID-19 pandemic?

The IEP team has the authority to determine whether a student who received modified curriculum has successfully completed IEP goals in order to graduate and be awarded a regular high school diploma.  According to the Pennsylvania Code (22 PA Code § 4.24(g)), a student with disabilities may graduate one of two ways. A student with disabilities may graduate either through the fulfillment of high school graduation requirements set forth in Chapter 4 (relating to academic standards and assessment) or upon the completion of his/her individualized education program (IEP) goals. Graduation with a regular high school diploma is a change in educational placement that requires an IEP team meeting. The IEP team makes the determination whether the student will graduate with a regular high school diploma through meeting the requirements of 22 PA Code Chapter 4.

The IEP team should review all relevant data to determine whether sufficient learning has been achieved with the services that were provided prior to school closure to constitute successful completion of the IEP.  If the IEP goals have not been met, the IEP team would need to identify a way for the student to successfully complete the IEP and/or fulfill a required condition in order to meet the graduation requirement.

18. What is the minimum documentation the LEA should maintain for COVID-19 related expenses?  

At an absolute minimum, document the expenditures as you normally would and specify in writing 1) the need for the expenditure, 2) if using federal funds, why federal funds are needed to address the need, and 3) that it is COVID-19 related. Implement a subcategory or local option code in your accounting system so that you can specifically identify all these types of costs should the expenses, at a later time, be deemed allowable uses of state or federal reimbursement funding or other federal grant funds.

19. In returning to live meetings now that our County has been moved to “yellow” status, what is the best way to do so to permit full public access when gatherings are still limited to 25?

School Districts can now hold live, in-person meetings (subject to social distancing and health guidelines).  In some cases, the combined number of Board Members and Administrators could account for much of the 25-person gathering limit. In those situations, it may be best to have only the public officials attend in person and have the public participate remotely.  To accomplish this, in-person attendees must login to the “remote” portion of the meeting on their devices or  the meeting and in-person attendees must be captured on a live video/audio feed to ensure that the public participating remotely can still hear and see them.  If you still would like to have live attendance by the public, it is strongly recommended that you have a legitimate, non-discriminatory method of choosing which individuals are permitted entry.  Examples of such methods include a lottery system or a first-come, first serve sign up system.  As long as any portion of the meeting is still remote, you must still publish the agenda prior to the meeting and accept public comment in real time or via written communication prior to the meeting.

20.  With the Governor’s restrictions being lifted or relaxed, can we hold a live graduation ceremony?

Yes, so long as the ceremony is being held in a county that has been moved to the “Green” phase of re-opening.  New guidance from the Governor’s office indicates that large gatherings of up to 250 are permitted.  So long as you cap the attendance at the ceremony at 250 individuals and maintain adequate social distancing and safety practices (spacing, masks, hand sanitizer, etc.) your School District may hold a live ceremony.

21. How should school districts prepare for extended school year (“ESY”) programming during the pandemic?

Safety for students and staff should remain the utmost priority.  With little guidance offered from the Department of Education, school districts are advised to review their ESY student population.  The majority of students who qualify for ESY programming require more “hands-on” assistance which cannot be accomplished by keeping individuals 6 feet apart.  Additionally, some students are unable to wear a mask for medical reasons.  Other students may not respond well to the recommendations for grouping and staying in specified areas. While ESY in a virtual format is certainly not the preferred method of providing this important service, it remains the safest approach as schools continue to navigate and implement new CDC guidance.

22. What are the important considerations for school districts in offering virtual ESY?

As with the transition from school closure to continued instruction, communication with parents is key.  Inform your ESY community of the reason for the school district’s decision to continue virtually for summer programming.  Seek information from parents and staff on how students qualifying for ESY responded to instruction during the COVID-19 closure.

As mentioned, please don’t hesitate to contact us if you have any additional questions. And we welcome you to visit MBM’s COVID-19 Guidance and Resource Center, where we post important legal updates on a regular basis.

Christina L. Lane
Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.