Entering week 3 of the COVID-19 craziness, we know you’re on information overload. Speaking of which, for those asking, here’s a link to our webinars including the most recent Q&A from Friday, March 20 (with guest star Orron Hill, NPERS legal counsel). We’ll plan to conduct additional webinars/Q&A sessions as needed, and we appreciate your feedback on the frequency and substance of these. You can also navigate to any of our guidance documents here.
The purposes of this update are simple: (1) to provide a list of the most common issues we’ve helped schools address over the last few weeks, with linked resources; and (2) to set the stage for legal compliance issues you’ll face this week or soon. Please “forward it like it’s hot” to any staff or board members who have asked for this information or may be interested.
Decide on your “continuity of instruction plan
We’re leading with the real reason why we’re all here: the students! Stay up to speed on “enrichment” versus “educational services” discussions and guidance as you continue forming and implementing your education plans during the closure. Saturday night, OSERS and OCR issued “new” “guidance” on serving students with disabilities during school closures. You can read it here. Commissioner Blomstedt discussed it on the NDE ZOOM yesterday, and we believe NDE will have guidance out on these really tough issues soon, including your questions about dual credit classes, equality of access to technology/internet, and others.
Our prior update (linked here) where we covered the initial OSERS/OCR guidance (OSERS linked here; OCR guidance linked here; OCR webinar linked here) probably won’t change all that much and is worth reviewing with your staff as you move further down the planning and implementation path. The Nebraska Department of Education’s Office of Special Education also issued updated guidance on Sunday night, which consists of a Q&A designed to help special education directors and service providers. That guidance can be found here.
After the NCSA/NDE “Continuity of Learning” webinar tomorrow at 1:00 PM Central (ZOOM link here) and some other discussions KSB is having with NDE, ESU special education staff, and others, we’ll have an update out that focuses on legal issues surrounding this issue.
Provide PWN to all of your special education students.
Regardless of the continuity of instruction plan you are implementing, you will have to work with your special education staff to draft and send prior written notice documents for all of your special education students. These will need to be sent after you have missed 10 school days due to the COVID-10 closure. The law and guidance are clear that students on IEPs must receive “prior written notice” (PWN) once their educational placement has been changed due to closure for 10 days or more. KSB has drafted some samples to consider, which we will be sending to clients after tomorrow afternoon’s NDE webinar. Remember, however, that each district’s obligations and PWNs will need to be tailored to your education plans. You should consult with your school or ESU’s attorney on getting legally compliant PWNs ready to roll out on time.
Address staff leave and work assignment issues, if you haven’t.
Both the Governor and Commissioner Blomstedt strongly suggested this closure will last the rest of this year. From authority resolutions, to return to work agreements, to negotiated agreement addendums, schools should have a staffing and compensation plan in place for the balance of the closure for all staff. In addition to pay/benefits issues covered by return to work structures and agreement addendums, this includes:
Understand your staffing limitations if “Directed Health Measures” are issued for your area, like they have been in Douglas, Cass, Sarpy, and Washington Counties. Here’s the DMH for those 4 counties, which Governor Ricketts said would be the same as those issued per ESU territory for future community spread cases;
Consider NPERS issues in light of staffing and paid leave plans (Here’s the NPERS guidance);
Plan for staff leave requests under the revised FMLA .
Last Wednesday, Congress passed the Families First Coronavirus Response Act (full text here...if you’re a glutton for punishment). KSB’s update on the overview of the law is linked here. We also discussed it at length during our March 20 ZOOM webinar and plan to release additional updates as the US Dept. of Labor starts issuing the required notice posters (March 25), forms, and additional guidance. This applies to all public schools and ESUs, so you will get requests!
Even if you are paying all of your staff their full pay and benefits pursuant to a return to work agreement or paying teachers under the state statute, you may still have things to consider under the Families First Coronavirus Response Act. For example, many school districts have been expecting teachers and at least some classified staff to perform duties during school closures. Districts may now be precluded from demanding performance of those duties if employees request employer-paid leave under this new federal law.
If your school employees use this new employer-paid leave, you will want to talk through the issues related to payroll tax credits with your school auditors/accountants. There will be more guidance on exactly how this will work from the Dept. of Labor soon.
Plan for Electronic Board Meetings
The Governor’s executive order has temporarily given boards some freedom to use technology to hold public meetings virtually. Here Executive Order 20-03. Here is follow-up guidance issued by the Attorney General. Keep in mind the AG’s guidance makes clear that if you have a quorum (or more) of board members present at one physical location, that location must be open to the public to attend in-person. No, you can’t kick them out if you have a quorum present in any physical location. KSB clients or anyone interested can contact any one of us for sample notices and guidance on your e-meeting options.
Review Unemployment Entitlements
Executive Order 20-04 changes unemployment entitlements under and may interact with your staffing plans during the closure. Your boards and staff will likely have questions. Here is the order. Here’s KSB’s Q&A about EO 20-04.
Get a signed copy of your county’s (or other local government) emergency declaration order.
If your county has declared an emergency, you should get a copy of that order. Ask your county emergency contact if they have listed your school or ESU in their declaration. The county’s order may be relevant for 2 purposes:
If your county has listed your school/ESU in its emergency declaration, that may entitle you to whatever FEMA/emergency aid is available due to COVID-19. If they haven’t, your board may want to pass a motion or resolution consistent with the FEMA and other requirements at its next meeting;
If your county has passed an emergency declaration, that also may entitle your board to authorize emergency expenditures, including in excess of your existing statutory authority under section 81-829.51. However, any action you took prior to your local government (county, or city in some cases) declaring an emergency--and prior to having a copy of that declaration in hand--won’t give you that authority.
KSB will have guidance out on this soon for our clients, including instances where your emergency expenditure authority may be needed if this closure lasts as long as the experts are starting to talk about.
Teacher Evaluations.
If you have completed staff observations for a full instructional period, you should schedule post-conferences in person or electronically. If you have all of the observations completed but still need to craft a summative evaluation document, you should likewise do so as quickly as is reasonable.
If your administrative staff did not complete all of the classroom observations scheduled for the second semester, you are going to have to decide how to handle that problem. You may still want to consider your options for completing evaluations prior to the end of the 19-20 year, such as observing staff during e-learning or enrichment activities. How your policy defines observations and “full instructional period” will matter.
If nothing else, you may want to consider issuing a letter or memo to each certificated staff member entitled by law and/or policy to an evaluation that will not occur due to the closure. The purpose of the evaluation process is to help staff improve, and you can still provide notice of perceived deficiencies and concrete suggestions for improvement to each staff member. We will have a sample for KSB clients and anyone interested to consider soon.
Request a Rule 10 waiver, once NDE completes its form, and fill out the Food Service survey NDE sent out last week.
We understand NDE is in the process of preparing a document which can be completed in about 30 minutes for Rule 10 waivers. Many of the items on this list may impact those decisions.
We hope you find this information helpful. If you have any questions about the information above or any other issue, we recommend you contact your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.