This afternoon, Governor Wolf signed SB 751 into law as Act 13 of 2020, offering assistance and guidance to Pennsylvania schools for the duration of the COVID-19 pandemic.
The provisions of the Act are effective for this school year only and contains a host of temporary changes to Pennsylvania’s Public School Code. KingSpry’s Education Law Practice Group has been watching these developments closely and offers the following explanations of the various parts of the law which becomes effective immediately.
If you have any legal questions related to Act 13 or the impact of COVID-19, please contact your legal counsel or one of the attorneys here at KingSpry.
180 Day Waiver/Closure of Schools/Flexible Instruction Days (FIDs) – Jonathan M. Huerta, Esq.
Article XV of the Public School Code requires that, “all public kindergartens, elementary and secondary schools shall be kept open each school year for at least one hundred eighty (180) days of instruction for pupils.” 24 P.S. § 15-1501. The law further provides that days when the school are closed are not to be counted as days taught.
SB 751 amends this section by immediately waiving the 180 instructional day requirement for the 2019-2020 school year only. Although not required, PDE has issued guidance that strongly encourages schools to plan possible adjustments to their calendars so that as much instruction as possible can be provided. PDE is also developing a simplified form whereby schools can report shortfalls in days/hours. Completed forms will be deemed approved.
The law further provides that the Secretary of Education may:
- Order the closure of all schools until the threat to health and safety caused by the Pandemic of 2020 has ended;
- Increase the number of flexible instructional days that a school may institute under Section 1506 to a number determined by the Secretary, as well as waive the application deadline;
- Waive the minimum total number of hours for a career and technical education required under 22 Pa.Code § 339.22;
- Waive the requirement to include performance data in a professional employee’s performance rating required under Section 1123;
- Waive the minimum number of days of prekindergarten instruction required under 22 Pa.Code § 405.41;
- Waive the twelve (12) week student-teacher requirement under 22 Pa.Code § 354.25; and/or
- Waive the NIMS assessment and NOCTI exam.
Also notable, a school, closed due to the Pandemic, may not receive less subsidy payments, reimbursements, allocations, tuition or other payments from PDE than that school would otherwise be entitled to receive had the Pandemic not occurred. A similar provision applies to charter schools.
Employee Pay and PSERS credit
No employee of any school entity who was employed as of March 13, 2020 shall receive more or less compensation that the employee would otherwise have been entitled to receive from the school had the COVID-19 pandemic not occurred. In addition, Congress enacted paid leave protections for all government employees under the Families First Coronavirus Response Act (“FFCRA”) effective April 1, 2020 through December 31, 2020. For further details, please see SLB 258, March 26, 2020.
School Cleaning Staff – Jessica F. Moyer, Esquire
As a result of, or during the threat to the health and safety of the school community caused by COVID-19 each school entity is required to provide any employee who is responsible for cleaning school facilities cleaning material and protective clothing and gear as recommended by the CDC. Many school entities have already engaged in what is being called “deep cleaning” of their school facilities.
School Entities have now been closed for 14 days and only essential employees are accessing various school facilities. However, if it is suspected that someone who has accessed a school facility since the statewide closure has tested positive for or is presumed to be positive for Covid-19 the CDC provides guidance as to how to clean and disinfect Community Facilities. School entities are considered Community Facilities. A list of EPA-registered disinfectants can be found here: www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2
Act 13 mandates that school districts shall be required to send written notice to the parents of students who receive services under an Individualized Education Program under the Individuals with Disabilities Education Improvement Act (IDEA) of the school district’s plans to ensure that the student receives a free and appropriate public education (FAPE) . Act 13 does not define what specifically is to be included in this written notice. In addition, Act 13 does not use the term NOREP or procedural safeguards. Thus, we believe that a written letter would suffice.
School districts are also required to make a good faith effort to offer continuity of education to students through alternative means during the mandated school closures. The Pennsylvania Department of Education will provide guidance to the school districts on their continuity plan while the Intermediate Units shall provide technical assistance. School districts are required to submit their plan to the Department of Education and are also required to post their plan to their publicly accessible website.
Although distance learning is required to be accessible to students with disabilities, there is no mandate for specific methodologies. Where technology is a barrier or the materials are not available in an accessible format, the district may still meet their obligations by providing children with disabilities equally effective alternative access to the curriculum provided to other students.
The general consensus, going forward, is that school districts are going to be evaluated on their best efforts in providing continuity of education as well as their communication with the parents and the parents’ and students’ level of involvement. To that end, it is recommended that the districts provide contact information so that parents and students may call in or email their questions or concerns.
For further guidance, see the PDE, OSER, and OCR websites.
Payments to Charter Schools
School districts are required to make subsidy payments to charter schools, regional charter schools, and cyber charter schools that are closed due to the coronavirus pandemic. To compute this payment, school districts shall use enrollment figures dated March 13, 2020 and apply the enrollment figures to the 2019/2020 per student tuition reimbursement formula.
For the cyber charter schools that remain open during this pandemic, school districts are required to make normal subsidy payments to each entity, based on current enrollment data.
Federal Testing Waiver – Jonathan M. Huerta, Esq.
For the 2019-2020 school year, Pennsylvania has received a waiver from the U.S. Department of Education from all Federal assessment, accountability, and reporting requirements in light of the COVID-19 Pandemic. The Pennsylvania Secretary of Education has also cancelled all testing for students in career and technical education programs, including the NIMS assessment and NOCTI exam.
District Mandate Waiver Requests – Avery E. Smith, Esq.
A district School Board can apply to the Secretary of Education for a waiver of any provision in Act 13, the regulations of the PA State Board of Education, or PDE standards, if the waiver is directly related to the school entity’s staffing needs or impacts the school entity’s instructional program or operations as a result of the pandemic. The Secretary has 30 days from the receipt of the application to approve or disapprove the request. The Secretary’s decision is not appealable. Districts cannot apply for a waiver of compliance with School Code sections 528 (relating to contracting out work), 1124 and 1125.1 (furlough of professional employees).
Extension of Professional Development Requirements – Jessica F. Moyer, Esq.
Pennsylvania’s educator professional development law, known as Act 48, describes the requirements that apply to all certified educational professionals. Act 48 established the requirement that all certificate holders must earn 180 hours of professional development every five years. Act 13 extends the compliance periods established by Act 48.
Effective immediately, each professional educator’s (including teachers and school leaders) current continuing professional education compliance period shall be extended by one year. One should note that this only applies to professional educators with an active certification as of the effective date of this subsection and shall expire one year from the effective date of this subsection.
Nonpublic/Homeschool – Ryan K. Fields, Esq.
The law also provides relief for nonpublic and private schools in Pennsylvania. For the 2019-2020 school year, the governing body of a nonpublic school is permitted to close the nonpublic school due to the threat to health and safety caused by the pandemic of 2020. While nonpublic schools are typically required to provide minimum days or hours of instruction, such requirements are also waived for this school year.
The minimum instructional time requirements are also waived for homeschool students. While other portfolio requirements remain in place, the home school supervisor is not required to administer a nationally normed standardized achievement test or statewide test. The requirement for an annual written evaluation of the student’s educational progress is also waived.
Transportation – Avery E. Smith, Esq.
Districts that outsource their student transportation may renegotiate their contracts with contractors to ensure that the personnel and fixed costs (including administrative and equipment) are maintained during the school closure. If the district continues to pay the contractor during the closure, the contractor must submit weekly documentation to the district indicating that its complement levels remain at or above the level as of March 13, 2020.
If a district continues to pay its transportation contractor OR operates its own transportation during the closure, it will receive transportation reimbursements from PDE at its normal rate it would have received had the closure not occurred.
PRRIs (Private Residential Rehabilitative Institution) – Brian J. Taylor, Esq.
In addition to other sections of the statute that do not permit salary or payment changes as a result of the 2020 pandemic, the new law also prohibits changes in payments made by school entities or the Commonwealth to Private Residential Rehabilitation Institutions.
Professional Employee Evaluation – Ryan K. Fields, Esq.
The current rating system for professional employees, temporary professional employees, non-teaching professional employees, and principals will expire on June 30, 2021, and will be replaced with a modified system of evaluation. Additionally, the requirement for inclusion of performance data in a professional employee’s performance rating is waived for the 2019-2020 school year. By March 31, 2021, PDE will develop and publish a rating tool for professional employees and temporary employees serving as classroom teachers.
Beginning with the 2021-2022 school year, comprehensive classroom observation and practice models will comprise 70% of the overall rating classroom teachers, up from the current level of 50%. Student performance will comprise the remaining 30% of the overall rating, based on multiple measures, such as student performance on assessments and other building-level data. For the first time, building-level data will be adjusted by “challenge multiplier” for each school building, which takes into account variances in data which are predictable based by the percentage of students in a school which are economically disadvantaged.
Teacher-specific data will comprise two-thirds of the student performance component. Principal evaluation will change substantially, with 70% of the overall rating reflected in the areas of planning and preparation, school environment, delivery of service, and professional development. Student performance is reduced from 50% to 10% of the overall rating under the new model. Performance goals will comprise the remaining 20% of the principal’s annual evaluation.
Minimal changes will occur for rating non-teaching professional employees, (ie Instructional Coach, School librarians, or a School Counselors) except that the share of student performance will decrease from 20% to 10% over the overall evaluation. Temporary professional employees will see a drastic change in rating. While student performance currently comprises 50% of the overall rating, it will no longer be factored into a temporary professional employee rating. Instead, comprehensive classroom observation and practice models will form the entire rating.
Critically, school districts, intermediate units, and career and technical schools may seek approval from the PDE to evaluate professional employees, temporary professional employees serving as classroom teachers, principals, and nonteaching professional employees through a rating tool which meets or exceeds measures of effectiveness established by other sections of SB 751.
If a school entity develops a rating tool as provided above, employees must be ranked as follows: distinguished, proficient, needs improvement, and failing. An overall performance rating of either “distinguished” or “proficient” shall be considered satisfactory. An overall performance rating of “needs improvement” shall be considered satisfactory, except that any subsequent rating of “needs improvement” issued by the same employer within four years of the first rating where the employee is in the same certification shall be considered unsatisfactory. An overall performance rating of “failing” shall be considered unsatisfactory.
Each school district, intermediate unit, and career and technical school shall provide the aggregate results of all evaluations of professional employees, temporary professional employees, principals, and nonteaching professional employees to PDE. A collective bargaining agreement may not provide for a rating system other than as provided under Act 13. A provision in an agreement or contract in effect as of the effective date of the new legislation that provides for a rating system in conflict with the new rating system shall be discontinued in a new or renewed agreement or contract, or during the period of status quo following an expired contract.
Bottom Line for Schools
Act 13 has brought much needed clarity on some issues brought on by the COVID-19 pandemic and left other important issues undecided and unclear. For instance, schools now know that employees must be held harmless in pay, position, and pension as a result of the Governor’s School Closures but have no guidance on whether seniors can graduate on time or other students can advance in grade without remediation or penalty. Some of these details will be addressed by PDE and others, no doubt, will be left to local decision. The cynical view of the legislative response that is Act 13 might be that employees are protected in pay and position while students are prayed for with the hope of educator innovation and initiative.
From a legal standpoint all schools can hope for is flexibility and understanding when their actions during this crisis come to be challenged. In the meantime, consultation with counsel and government and collaboration with fellow educators is the safest and surest path to return to normalcy in operations and instruction.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.