On March 27, 2020, Gov. Tom Wolf signed into law Act 13 of 2020, significantly revising the Pennsylvania Public School Code. The new Section – “Pandemic of 2020” – addresses a variety of issues confronting local education agencies as schools continue to function during the coronavirus pandemic. This state-level legislation intersects with federal law and guidance.

The amendments address a variety of items that are anticipated to arise due to the shift from in-person instruction to what the Pennsylvania Department of Education (PDE) is describing as “Continuity of Education.” According to PDE, any educational practices, including Planned Instruction, Enrichment and Review, or a combination of both, that provide students with the opportunity to develop and maintain skills during the prolonged school closure qualify as Continuity of Education.

As an overarching principle, the amendments require that school entities make a good faith effort to offer Continuity of Education to students “using alternative means.” This position is consistent with the guidance of the U.S. Department of Education (DOE), and may constitute a departure from what many Pennsylvania schools are or are not providing to students due to the swiftness with which school buildings closed.

School Entities Definition

• A public school entity is defined as a school district, intermediate unit, area career and technical school, charter school cyber charter school, or regional charter school a child attends pursuant to the compulsory attendance requirements of the School Code.
• Certain requirements apply to school bus transportation contractors, private schools, non-public schools, private residential rehabilitative intuitions, and home education programs.

School Employees

• Compensation
  • Employees of school entities who were employed as of March 13, 2020, must continue to receive the same compensation to which they otherwise would have been entitled had the pandemic not occurred.
  • By enacting this mandate, the General Assembly effectively resolved the question of whether and to what extent school entities would continue to provide compensation and benefits to hourly school employees. These costs were already accounted for in each school entity’s annual budget, and expending those already-budgeted funds will avoid further strain on the Commonwealth’s unemployment compensation system.
• Leave through the federal Families First Coronavirus Response Act (FFCRA)
  • The FFCRA established an emergency expansion of FMLA benefits and emergency paid sick leave. It becomes effective April 2, 2020.
  • The emergency FMLA expansion allows for public school employees to take paid FMLA leave for certain qualifying needs related to the public health emergency. Those qualifying reasons include if an employee is unable to work or telework because they need to care for a child under 18 years of age who’s school or place of care has been closed, or because the child care provider of that child is unavailable because of the public health emergency.
  • Continuity of education plans should account for the possibility that some employees will request emergency leave, which may require creative and collaborative efforts to meet staffing needs.
  • As with any FMLA request, employers should remember the FMLA’s prohibitions against interference and retaliation continue to apply.
• Other benefits
  • All other benefits for school employees should continue to run through the remainder of the 2019-2020 school year as if the pandemic had not occurred.
  • The new provisions make clear that this includes contributions to and service credits for the Public School Employee Retirement System (PSERS).
• Certification, teacher evaluations, and professional development
  • For all educators with an active certificate, continuing education requirements are extended for one year.
  • For teacher evaluations, performance data will not be included in a teacher’s rating. Aspects of performance data come from student performance on standardized tests. Standardized testing has been cancelled, so this provision clarifies that the criteria for annual performance evaluations will be modified and implies that annual performance evaluations are not completely waived. As such, school employers should begin making arrangements for evaluations to continue, and, where appropriate, communicate procedures and expectations to union leadership.
  • Pre-service teachers who were completing their educator preparation programs will not be required to complete twelve full weeks of student teaching.
• School staff with cleaning duties
  • School entities must provide those employees who are responsible for cleaning school facilities during building closure or as a result of the threat to health and safety caused by the coronavirus with appropriate cleaning materials and protective clothing and gear as recommended by the Centers for Disease Control and Prevention.

Instructional Program and Operations

• Each school entity is required to create a formal continuity of education plan, which will be posted on the school entity’s publically accessibly website and submitted to the Pennsylvania Department of Education. PDE is required to provide guidance to school entities on these plans, and Intermediate Units may provide technical assistance.
  • The new provision does not have a deadline for plan submission to PDE. It is also unclear whether approval of the plans must occur prior to implementation. Intermediate Units are able to provide technical assistance and we will continue to monitor developments and provide additional updates as necessary.
• The new provision includes a number of waivers, including: the requirement of 180 days of pupil instruction; career and technical education program minimum hour requirements; and prekindergarten minimum instructional hour requirements.
• As reported in a previous alert, the General Assembly permitted districts to submit plans and seek approval for Flexible Instructional Days. The new provision permits the Secretary of Education to increase the number of Flexible Instructional Days allotted to each district and waives the application deadline. Note, however, that activities provided pursuant to a Flexible Instructional Day, as Section 1506 is written, are intended to replicate board approved curriculum.

Special Education and Pupils

• School entities are required to provide written notice to the family of each student with an Individualized Education Program (IEP) under the Individuals with Disabilities Education Act (IDEA). However, the amendments do not specify the required elements or format of such notice. Given the U.S. Department of Education’s evolving guidance and the potential for liability exposure under IDEA and Section 504, entities are encouraged to collaborate with special education counsel in order to meet this obligation.
• Any payments due to be made by a public school entity or the Commonwealth to a private residential rehabilitative institution for any student enrolled as of March 13, 2020, will not be decreased due to the private residential rehabilitative institution’s closure.
• Any payments due to be made by a public school entity to a private or non-public school by the public school entity for a student’s placement will not be increased or decreased due to the private or non-public school’s closure as long as the following conditions apply: the student was placed by the public school entity (for example, a special education placement); the student was enrolled as of March 13, 2020; and the private or non-public school is offering continuity of education during for the duration of the closure. Despite this last requirement, the legislation is silent regarding whether private and non-public schools must submit a continuity of education plan to PDE or post a plan on their website.
• Standardized testing requirements for the following tests have been waived:
  • Assessments required under the federal Every Student Succeeds Act (ESSA).
    • PDE has already applied for, and been granted, a waiver of state-wide accountability standardized testing, which is required under ESSA.
    • This includes the Pennsylvania System of School Assessment (PSSA), the Pennsylvania Alternate System of Assessment (PASA), the Pennsylvania Accountability System (PAS), the Pennsylvania Value-Added Assessment System (PVAAS), the Keystone Exams (end-of-course), Classroom Diagnostic Tools (CDT) and the National Assessment of Educational Progress (NAEP).
  • The National Institute for Metalworking Skills (NIMS) Assessment, and the National Occupational Competency Testing Institute (NOCTI) Exam.
  • Note that College Board, the entity responsible for Advanced Placement tests, is currently planning on offering AP Exams in a modified format.

Other Issues

• The General Assembly delegated authority to the Secretary of Education to order continued school closure for the duration of the 2020 pandemic, if necessary.
• School bus transportation contracts may be renegotiated to ensure that the contractor maintains its personnel and fixed costs, including administrative and equipment, are maintained for the duration of the closure. (See below for transportation reimbursements and requirements of the school bus transportation contractor).
• Waiver of the requirement to submit education documentation pursuant to Section 1327.1(e)(1), 1327.1(e)(2), and 1327.1(h)(1) to the Superintendent of the district of residence for home education programs.
• The following provisions address payments due to public school entities:
  • Closure due to the Pandemic of 2020 will not result in a decrease of subsidy payments, reimbursements, allocations, tuition, or other payments from PDE. Thus, districts will receive the same disbursements as they were entitled to receive had the district operated for 180 days, and charter schools will receive tuition payments based on enrollment as of March 13, 2020.
  • School entities remain eligible for school bus transportation reimbursements that would have been received from PDE without the disruption if the school entity either operates its own school bus transportation or continues to pay a school bus transportation contractor. (See below for transportation reimbursements and requirements of the school bus transportation contractor).

Provisions Applicable to Entities Other Than Public Schools

• The following provisions apply to school bus transportation contractors:
  • Contracts may be renegotiated to ensure that personnel and fixed costs, including administrative and equipment, are maintained for the duration of the closure.
  • School bus transportation contractors may continue to be paid pursuant to the contract, and school entities are entitled to reimbursement for that payment, as long as the school bus transportation contractor submits to the school entity weekly documentation that its complement levels as of March 13, 2020 are maintained for the duration of the closure.
• The following provisions apply to private or non-public schools:
  • The school’s governing body may close the school due to the Pandemic of 2020, and minimum instructional time requirements are waived.
  • Closure of a private or non-public school that offers continuity of education during the closure period will not result in an increase or decrease of payments from public school entities for students enrolled as of March 13, 2020 (See Special Education section, above).
• The following provisions apply to private residential rehabilitative intuitions:
  • Closure of a private residential rehabilitative institution will not result in a decrease of payments from public school entities or the Commonwealth for students enrolled as of March 13, 2020 (See Special Education section, above).
• The following provisions apply to home education programs under Section 1327.1:
  • Minimum instructional time requirements are waived.
  • Waiver of the requirement that supervisors of home education programs demonstrate that appropriate home education is occurring by administrating a nationally normed standardized achievement test or statewide standardized assessment and by obtaining an annual written evaluation. These are documentation requirements.
  • Waiver of the requirement that documentation be submitted to the school district of residence by June 30 of each year.

The General Assembly acknowledged the potential for uncertainty by including a catch-all waiver provision. With the exception of three labor provisions, the catch-all provision permits education agencies to apply directly to PDE to waive any other requirement if the necessity is brought about by the pandemic of 2020 and the waiver directly relates to staffing needs, the instructional program, or operations of the school entity.

Even though the legislative amendments cover many facets of school operations that have been disrupted due to the pandemic, practical application of the amendments will undoubtedly raise issues that are unique to each education agency’s circumstances. A nuanced legal analysis of each situation and an understanding of the rapidly evolving circumstances will be necessary as education agencies assemble solutions to problems that may not yet be known.

If you have any questions on this new information, please contact any of the attorneys in the Barley Snyder Education Group.

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