The not-so lame duck session: Last minute legislation affecting Ohio schools

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Bricker & Eckler LLP

“Lame Duck” is the period in a public office after an election but before the successor takes office, leaving, presumably, the exiting public official with no particular power or influence.  However, over the month of December, after the election of many new legislators, the Ohio House and Senate passed a flurry of laws before the newly-elected politicians took office in January. The new laws affecting public K-12 schools in Ohio that were signed by the governor are summarized below.

  • H.B. 66 – Student absence notification (O.R.C. 3321.141) - Effective April 4, 2019
    • Within two hours after the beginning of each school day, the attendance officer or his/her assistant or designee shall make at least one attempt to contact the parent/guardian of a student absent without legitimate excuse by:
      • Telephone call placed in person;
      • Automated telephone call via a system that includes verification that each call was actually placed, and either the call was answered by its intended recipient or a voice mail message was left by the automated system relaying the required information;
      • Notification through automated school student information system;
      • A text-based communication system;
      • A notification sent via email;
      • A visit, in person, to the student’s residence of record;
      • Any other notification procedure that has been adopted by resolution of the board of education.
    • If the parent/guardian initiates a telephone call or other communication notifying the school of the student’s excused or unexcused absence within two hours after the beginning of the school day, the school is under no further obligation described above.
    • School personnel are not liable for civil damages for using this system in good faith.
    • The law does not apply to students who are in home-based online, or internet or computer-based instruction or instances where a student was not expected to be in attendance due to that student’s participation in off-campus activities (i.e., participation in a college credit plus program).1
  • H.B. 491 – Graduation options; substitute licenses for pupil services personnel; school treasurer liability; teacher licensure verification; school resource officer training; school work during suspensions (O.R.C. 3319.2210, 3313.25, 3313.31, 3313.36, 3313.66) - Effective March 20, 2019
    • Graduation options
      • Alternative graduation pathways are extended for the classes of 2019 and 2020.
      • The Ohio Department of Education is charged with developing rules related to capstone project requirements and alternative graduation pathways by May 31, 2019.
    • Substitute licenses for pupil services personnel 
      • The Ohio Department of Education will issue licenses for substitute special language pathologists, audiologists, physical therapists and assistants, occupational therapists and assistants, and social workers who otherwise hold a license from the respective licensing board. These individuals may be employed in the same capacity as a substitute employee by school districts.
      • A registered nurse who holds a bachelor’s degree in nursing and a license from the Ohio Board of Nursing may be employed as a substitute nurse.
      • These individuals must submit their license from their qualifying licensing authority and submit to a criminal background check for a substitute license.
      • The Ohio Department of Education may not impose other rules. 
      • These individuals may be employed as a substitute only.
    • School treasurer liability, verification of licensure and compensation of teachers
      • A treasurer shall not be held liable for a loss of public funds when the treasurer has performed all official duties required of the treasurer with reasonable care but shall be liable only when a loss of public funds results from the treasurer’s negligence or other wrongful act.
      • The department of education shall not consider the loss of public funds not resulting from the treasurer’s negligence or other wrongful act a violation of the treasurer’s professional duties, provided the treasurer has performed all official duties required of the treasurer with reasonable care.
      • No treasurer shall be liable for a loss of public funds that results from a treasurer’s reliance on the accuracy of nonfinancial information or data of the school district, including reports in the education management information system, pupil transportation reports, and licensure or other credentialing information unless the loss results from the treasurer’s negligence or other wrongful conduct.
      • The superintendent or designee must provide the treasurer a written statement indicating that the teacher has filed any necessary reports with the district including licensure, with grades and subjects taught and dates of validity.
      • No treasurer shall be liable for loss of public funds for any payment to a teacher made pursuant to the law, unless the loss results from the treasurer’s negligence or other wrongful act.
      • No superintendent shall be liable for loss of public funds for any payment to a teacher unless the loss results from the superintendent’s negligence or other wrongful act.
    • School resource officer training
      • The Ohio Peace Officer Training Commission is charged with developing rules for creation of school resource officer training (rather than the course itself).
    • School work during suspensions
      • Strikes the language that was effective November 2, 2018, and makes the intent more clear:
        • Boards shall adopt a policy establishing parameters for completing and grading assignments missed during a suspension.
        • The policy shall allow the student to make up the work AND receive at least partial credit for completed assignments.
        • The policy may permit grade deductions as a result of the suspension.
        • The policy shall prohibit receipt of a failing grade on a completed assignment solely on account of the suspension.
  • H.B. 477 Repeals numerous outdated education laws; civil immunity regarding mental health services and paraprofessional certification - Effective April 8, 2019
    • Specifies that the requirement that a paraprofessional must be a “properly certified paraprofessional” to provide academic support in a core subject area only applies to paraprofessionals in a program supported with Title I funds. (R.C. 3319.074)
    • Under continuing law, a “properly certified paraprofessional” (1) holds an educational aide permit and (2) either:  (a) has an “ESEA qualified” designation on the permit, (b) has completed at least two years of coursework at an accredited institution of higher education, (c) holds an associate degree or higher, or (d) has attained a qualifying score on an academic assessment specified by the ODE.
    • Provides civil immunity regarding decisions not to procure mental health services for a suspended or expelled student. (R.C. 3313.668(C))
      • Under law enacted earlier in 2018, the school principal, whenever possible, must consult with a mental health professional prior to suspending or expelling a student in any of grades Pre-K through 3.
  • H.B. 291 Insurance in lieu of surety bonds - Effective March 20, 2019 (New O.R.C. 3.061)
    • The new law includes school district in the list of political subdivisions allowed to forego surety bonds as protection against employee dishonesty, if the district instead obtains an insurance policy that includes employee dishonesty and faithful performance coverage. 
    • The board must pass a policy to this effect.
      • The policy must cover the employee before the employee begins duties.
      • The policy must be in the amount of any bond required by law or, if there is no amount set by law, in an amount determined by the governing body.
  • H.B. 58Cursive writing - Effective March 20, 2019
    • ODE required to include supplemental instructional materials on cursive handwriting in English language arts model curriculum for K-5 (3301.0726(B) – Signed 12/29/2018)
    • The materials must be incorporated into the model curriculum by July 1, 2019, and must be updated periodically.
  • H.B. 338 – Expansion of list of medical professionals qualified to conduct bus driver annual exams - Effective March 20, 2019
    • Revises O.R.C. 3327.10 to expand the list of medical professionals who can conduct school bus drivers' required annual exams from medical doctor, physician assistant, nurse practitioner, clinical nurse specialist and certified nurse midwife to include chiropractor and medical examiner certified by the federal motor carrier safety administration.
  • H.B. 502 – Educator in-service training on youth suicide awareness - Effective March 22, 2019
    • Requires certain public school professionals to complete in-service training in suicide awareness and prevention once every two years. 
    • This requirement applies to nurses, teachers, counselors, school psychologists, administrators, and any other appropriate personnel employed by a school district, educational service center, community school or STEM school.
  • H.B. 137 Child abuse reporting - Effective March 20, 2019
    • Defines “peace officer” to include sheriff, deputy sheriff, constable, police officer of a township or joint police district, marshal, deputy marshal, municipal police officer or state highway patrol.
    • Identifies peace officers as mandatory reporters and requires that peace officers must make reports of abuse to children services unless there is an immediate arrest.
    • Allows other mandatory reporters to report suspected abuse or neglect to children services or any peace officer, not just municipal or county peace officers. 
  • H.B. 139 – Public records - Effective April 8, 2019
    • Specifies that a permanently retained record that is exempt from disclosure under the Public Records Law becomes a public record 75 years after it was created, with certain exceptions. If another provision of the Revised Code establishes a period for disclosing a record that conflicts with the 75-year period, the time period in the other provision prevails.
    • However, if a record is confidential under federal law, the act does not make it public. 
    • Exceptions include public school district security and infrastructure records.
  • H.B. 158 – Unemployment compensation for military spouses - Effective March 20, 2019
    • Employees who quit work to move and accompany a military spouse may be eligible for unemployment compensation. To be eligible:
      • The spouse must be a member of the armed forces, on active duty, or a member of a commissioned corps of the national oceanic and atmospheric administration or public health service and must be the subject of a transfer.
      • The employee must have left employment to accompany the spouse to a location from which it is impractical to commute; and upon arrival at the new place of residence, the individual is able and available for suitable work.
  • H.B. 425 – Body cameras; specifies that infrastructure records of public school are not public records - Effective April 8, 2019
    • Provides that a record created by a body camera worn by a peace officer or a dashboard camera used by a peace officer is a public record, subject to certain exceptions.
    • Specifies that an infrastructure record of a public school is not a public record subject to mandatory release or disclosure under the Public Records Law.
  • H.B. 497 – Nonconsensual dissemination of private sexual images - Effective March 22, 2019
    • Prohibits nonconsensual dissemination of private sexual images.
    • A violation is a third-degree misdemeanor.
    • Creates a civil action that allows for an injunction, damages, attorney fees and punitive damages. Damages are presumed.
      • The person in the image must be 18 years or older.
    • There are exemptions for images disseminated for purposes of or in connection with the reporting of unlawful conduct and if the offender is under 18 years of age and the person in the image is not more than five years older than offender.
    • No student enrolled in (or applicant to) an institution of higher education in Ohio who is victim of 2917.211 shall lose any financial assistance for sole reason of being a victim, and no disciplinary action (including academic penalties) shall be taken.
  • H.B. 572 – Pension system omnibus – technical changes; service credit for non-teaching DD Board employees - Effective March 22, 2019
    • Requires the Public Employees Retirement System (PERS) board to grant a full year of service credit to a PERS member employed as a nonteaching school employee of a county board of developmental disabilities if the member performs full-time services in the position for at least nine months of the year and is paid earnable salary in each month of that year.
    • Removes the five-year limit on the amount of prior STRS defined contribution plan service credit that a member can purchase in the defined benefit plan. 
    • STRS is now permitted, but not required, to have a disability benefit recipient submit to an annual medical examination. After  an  examination,  the  examiner  shall  report  to  the  board  whether  the disability benefit recipient is no longer  incapable of resuming the service from which the recipient was found disabled. If the examiner determines that the disability benefit recipient is no longer incapable of resuming the service from which the recipient was found disabled, the retirement board shall appoint a medical review board composed of at least three disinterested physicians to evaluate the examiner's report. The medical review board shall report its finding to the retirement board. If the  retirement  board concurs in a  finding  by the  medical review board that the disability benefit recipient is no longer incapable, the board shall order termination of payment of a disability benefit as prescribed by the statute.
    • Removes a retirant or disability benefit recipient's sponsored dependents from being eligible for health care coverage under a STRS policy or contract.2
  • S.B. 51 – Lake Erie bill with appropriations - Effective March 20, 2019 (uncodified law; section 18)
    • Provides an example of how a school district can address a specific situation where there is otherwise no legal remedy. A non-profit hospital was mistakenly assessed valuation for tax year 2016 (which negatively affected the school districts’ state aid). This legislation is making a state foundation aid adjustment to correct the mistaken valuation. (Deer Park Community CSD and Great Oaks)
  • H.B. 271 – Accessibility law - Effective March 20, 2019
    • Permits an alleged aggrieved party claiming a violation of an accessibility law to notify the owner, agent or other responsible party of the property (responsible party) of the alleged violation before filing a civil action. A decision by an alleged aggrieved party to file a civil action without serving notice affects the party's ability to recover attorney's fees.


1 H.B. 66 also establishes the Subcommittee on Standards for Teacher Preparation of the Educator Standards Board; establishes the undergraduate Mission Study Committee to evaluate each state university’s efforts to secure participation in the undergraduate mission by its tenured faculty; and qualifies public and private institutions of higher education as covered entities for the cybersecurity program safe harbor.

2 There were several other technical changes made to PERS/STRS statutes not listed herein.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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