In 2018, we reported on the United States Department of Education’s Notice of Proposed Rule Making (“NPRM”) relating to Title IX of the Education Amendments of 1972. The NPRM aimed to overhaul Title IX’s language regarding its prohibition of sexual harassment in schools and its procedures for adjudicating sexual harassment complaints in schools.

Generally, Title IX prohibits discrimination on the basis of sex, which includes sexual harassment and acts of sexual violence. Title IX applies to all people in an educational institution that receives federal funding.

After much anticipation, on May 6, 2020, the NPRM became a final rule that will take effect on August 14, 2020. The following is a summary of the implications of the final rule, including some notes on how the final rule differs from the NPRM. Please note that this summary is not an exhaustive list of the new changes to Title IX:

• One of the NPRM’s main goals was to change the timeline for when schools must begin responding to complaints of sexual harassment. Prior to the NPRM, the timeline began when the school should have known about the harassment, which in the legal world is defined as constructive notice. The NPRM altered this by making the timeline begin when the school has actual notice of sexual harassment or allegations of sexual harassment. The final rule requires this notice to be given to any employee of an elementary and secondary school and to the school’s Title IX Coordinator (a new “actor” required by the final rule), while the NPRM only required that the notice be given to a teacher.

• You may recall that the NPRM sought to define “sexual harassment” as: (1) a school employee conditioning education benefits on participation in unwelcome sexual conduct (i.e. quid pro quo); (2) unwelcome conduct on the basis of sex, that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or (3) sexual assault, as that term is defined in the Clery Act ( which is any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent, i.e. rape, fondling, incest, and statutory rape). The final rule differs slightly in its definition of “sexual harassment” in that: (1) the severe/pervasive standard must be judged according to what a reasonable person would determine as severe, pervasive, and objectively offensive; and (2) it adds “dating violence, domestic violence, or stalking as defined in the Violence Against Women Act” to what may constitute sexual harassment under Title IX. The Clery Act definition of sexual assault remains in the final rule definition.

•  The NPRM provided that a school must respond to complaints of sexual harassment when it occurs “in the school’s education program or activity.” The final rule now defines “education program or activity” to mean locations, events, or circumstances over which the school exercised substantial control over both the respondent (alleged harasser) and the context in which the sexual harassment occurs.” This calls into question whether a school would need to respond at all if sexual harassment is alleged to have occurred, for example, in an employee’s home or car.

• As stated above, the NPRM and final rule now include a requirement that schools designate a Title IX Coordinator to coordinate the school’s efforts to comply with its Title IX responsibilities. Beginning August 14, 2020, the Title IX Coordinator’s required contact information must be prominently displayed on school websites.

• The final rule differs greatly from the NPRM in that a school’s mandatory response to sexual harassment must include, but is not limited to: (1) offering supportive measures to the complainant; (2) the Title IX Coordinator promptly contacting the complainant to discuss the availability of supportive measures, considering the complainant’s wishes with respect to supportive measures, informing the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explaining the process for filing a formal complaint to the complainant; and (3) following a grievance process that complies with the final rule before the imposition of any disciplinary sanctions or other actions that are not supportive measures, against a respondent (alleged harasser).

• The final rule also differs from the NPRM in that it requires a complainant, at the time he/she files a formal complaint, to be participating in or attempting to participate in the education program or activity of the school with which the formal complaint is filed.

• The final rule contains a new requirement that a complaint hearing’s decision maker must weigh the relevancy of a question asked of a party or witness before the party or witness answers the question. Additionally, while the NPRM required elementary and secondary schools’ grievance procedure to have a live hearing, the final rule makes the live hearing requirement optional.

• The NPRM provided that a school may choose to offer an appeal from a determination of responsibility or dismissal of a complaint; the final rule makes it mandatory to offer parties an appeal, but only on the following bases: (1) procedural irregularity that affected the outcome of the matter; (2) new evidence that was not reasonably available at the time the determination was made that could affect the outcome of the matter; and/or (3) the Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias that affected the outcome of the matter.

• The NPRM allowed schools to choose to offer informal resolution options (such as formal or informal mediation), but only with the voluntary, informed, written consent of both parties. The final rule states that a school may not require that the parties participate in informal resolution, or offer informal resolution, unless a formal complaint is filed. However, the final rule provides that schools must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

• The NPRM did not include anti-retaliation provisions, but the final rule does.

As a result of the final rule, schools will need to review their policies and procedures to ensure their compliance with the new Title IX rules. This will largely involve revising your Uniform Grievance Procedure to ensure compliance and, potentially, bestow “Title IX Coordinator status” on the Uniform Grievance Procedure’s already-existing Complaint Manager.

If you have any questions or concerns about the final rule, provisions not discussed in this priority briefing, or the many potential interpretations of the final rule, please do not hesitate to contact one of your attorneys at Hauser, Izzo, Petrarca, Gleason & Stillman, LLC.  

Like so much else during the crisis caused by the ongoing pandemic, property values can be affected. That, in turn, can impact property tax assessments and taxpayer appeals in the Property Tax Appeal Board and in the courts.  This is especially true for commercial and industrial properties whose businesses have seen reductions in volume as a result of the stay-at-home orders issued by the Governor.

It is important to note that a decrease in property values is not always a detriment to taxing bodies. To the extent that the Assessor can automate these changes and encourage taxpayers to not file actions with the Property Tax Appeals Board or the courts, it means that taxing bodies should face fewer refunds and less revenue loss than they might otherwise.

In Cook County, the Assessor has made it clear that his office will reconsider the value of every property in the County based on the impact of the novel coronavirus. Typically, properties in Cook County are reassessed on a triennial basis. In 2020, the Assessor is scheduled to reassess townships located in the south and west suburbs – some of which have already been completed.

Moreover, according to the Cook County Assessor’s office, any township that has not already been reassessed will have any change in property value due to the coronavirus automatically taken into account. Those townships set for reassessment in 2020 will receive notice of an adjustment or may have a reassessment performed automatically. The Assessor has indicated that north suburban and Chicago properties will automatically receive notices about adjustments to assessed values based on the coronavirus regardless of whether an appeal is filed. Commercial property owners have been encouraged to use the Assessor’s online portal to provide information on changes in rent and expenses to assist with valuation.

All assessment officials outside of Cook County whom we contacted have indicated that they are examining the data, just as they have from changes after other major events that impacted the real estate market. It is unknown exactly how they plan on quantifying changes in value, but it appears likely that the majority of properties will see their assessed value decrease. 

Of more concern, we have also found that some counties have started a process to either delay collection of property taxes or waive penalties for late payments. In DuPage County, the county board passed an ordinance that waives penalties when a property owner meets certain requirements (including a loss of job, significant loss of income, inability to collect rent, or a business that was closed for being “non-essential”). The Will County Treasurer has also indicated that its office has received requests from taxpayers for similar assistance. At this time, the Will County Board has not passed a similar ordinance, but there are calls by some for that to happen. News stories suggest that certain legislators may also seek legislation to delay property tax payment dates; however, no bills to that effect have advanced at this time.

Any change in property tax due dates could lead to concerns for taxing bodies. School districts are at the mercy of the county treasurers to receive local property tax revenue and any delay could mean that districts would run into cashflow issues.

We will continue to follow these matters in the coming weeks. If you have any questions, please do not hesitate to contact any of our attorneys.

On March 18, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law.  As described in a priority briefing we issued soon after its passage (and which we recommend reviewing as a precursor to this posting), the FFCRA requires employers, including school districts and joint agreements, to provide leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and to provide paid sick leave in accordance with the Emergency Paid Sick Leave Act (“EPSLA”).  Since the FFCRA’s passage, the U.S. Department of Labor (“DOL”) has issued applicable regulations and guidance.  The following information provides a summary of these regulatory provisions.

EMERGENCY PAID SICK LEAVE ACT

Benefit Provided Under the EPSLA

Employers are required to provide qualifying employees with paid sick leave under the EPSLA (“Paid Sick Leave”).

• Full-time employees are entitled to up to 80 hours of Paid Sick Leave.
• Part-time employees with normal weekly schedules are entitled to receive an amount of Paid Sick Leave equal to the number of hours the employee is normally scheduled to work over two work weeks.
• Part-time employees without a normal schedule are entitled to the following amount of Paid Sick Leave:
  • If the employee has been employed for at least six months, the employee is entitled to receive an amount equal to 14 times the average number of hours the employee was scheduled to work each calendar day over the prior six-month period.
  • If the employee has been employed for fewer than six months, the employee is entitled to an amount equal to 14 times the number of hours the employee and employer agreed at hiring that the employee would, on average, work each calendar day.  Absent such agreement, the employee is entitled to an amount equal to 14 times the average number of hours per calendar day that the employee was scheduled to work during the entire period of employment, including hours for which the employee took any type of leave.

Qualifying for Paid Sick Leave Under the EPSLA

Employees may qualify for Paid Sick Leave regardless of how long they have been employed.  To qualify, however, the employee must be “unable to work” for certain qualifying reasons.  An employee is only considered “unable to work” if the employer has work for the employee, but the employee cannot perform this work (either in person or remotely) because of a qualifying reason. If the employer has no work for the employee, then the employee is not entitled to Paid Sick Leave.

The following are qualifying reasons for Paid Sick Leave:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (e.g. Illinois’ stay-at-home order).
   • To qualify, the order must prevent the employee from working.  If the employee cannot work at his or her normal workplace, but can still work remotely, then he or she is not prevented from working by the order and does not qualify for Paid Sick Leave.
2. The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns.
   • To qualify, the health care provider must advise the employee to self-quarantine because: (a) the employee has COVID-19; (b) the employee may have COVID-19; or (c) the Employee is particularly vulnerable to COVID-19.
   • Additionally, following this advice to self-quarantine must prevent the employee from working in-person and remotely.  The employee does not qualify for paid leave if he or she can still work while following the advice to self-quarantine.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis from a health care provider.
   • To qualify, the employee must be experiencing fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the CDC.
   • Paid Sick Leave for this reason is limited to the time the employee is unable to work because the employee is taking affirmative steps to get a medical diagnosis (e.g. making, waiting for, or attending a doctor’s appointment).
4. The employee is caring for an individual who is subject to a federal, state, or local quarantine/isolation order, or who has been advised to self-quarantine by a health care provider.
   • To qualify, the employee must be caring for an immediate family member, a person who resides in the employee’s home, or another person whose relationship to the employee creates an expectation that the employee would care for him or her.
   • Additionally, caring for this person must prevent the employee from working.  If the employee can still perform his or her work (whether in-person or remotely), then the employee does not qualify for Paid Sick Leave.
5. The employee is caring for his or her child whose school or place of childcare has been closed for reasons related to COVID-19.
   • To qualify, there must be no other suitable person available to care for the employee’s child.
   • Additionally, caring for his or her child must prevent the employee from working. If he or she can still perform his or her work (whether in-person or remotely), then the employee does not qualify for Paid Sick Leave.

Compensation for Paid Sick Leave

If the employee is taking Paid Sick Leave because of a quarantine/isolation order, medical advice to self-quarantine, or to seek a medical diagnosis (qualifying reasons 1, 2, and 3, above), the rate of pay is the higher of: (a) the employee’s average regular rate; (b) the federal minimum wage; or (c) any applicable state or local minimum wage.  The employee receives 2/3 of this rate if he or she is taking Paid Sick Leave to care for another individual, or to care for a child as a result of school or childcare closure (qualifying reasons 4 and 5, above).

However, the maximum amount an employer is required to pay an employee taking Paid Sick Leave is $511 per day and $5,110 in the aggregate for qualifying reasons 1, 2 and 3.  If the employee is taking Paid Sick Leave for qualifying reasons 4 or 5, the maximum amount is $200 per day and $2,000 in the aggregate.

Intermittent Paid Sick Leave

If an employee works at the employer’s worksite, intermittent leave is only possible if: (1) the employee and employer agree to intermittent leave; AND (2) the qualifying basis for Paid Sick Leave is to care for the employee’s child as a result of school or childcare closure related to COVID-19.

If an employer directs or permits an employee to work remotely, or the employee normally works remotely, mutual agreement between the employer and employee is the only requirement for Paid Sick Leave to be taken intermittently.  As described above, however, Paid Sick Leave is only available if the qualifying reason prevents the employee from working.

Interaction with Other Benefits

Paid Sick Leave, whether used or not, does not reduce or eliminate other benefits such as normal sick leave.  For example, if an employee is entitled to 15 sick days under a collective bargaining agreement, the employee’s right to Paid Sick Leave is in addition to those 15 days.  If the employee contracts COVID-19 and uses his or her 10 days of Paid Sick Leave under the EPSLA, he or she will still have the 15 normal sick days from the collective bargaining agreement.

Furthermore, employers may not require or influence an employee to use any other type of paid leave prior to using available Paid Sick Leave under the EPSLA.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Benefit Provided Under the EFMLEA

The EFMLEA expands the qualifying reasons for an employee to take FMLA leave.  Specifically, it allows qualifying employees to take up to twelve weeks of leave to care for a child whose school or place of childcare has been closed as a result of COVID-19 (“EFMLEA Leave”).  When an employee takes leave for this reason, the first two weeks are unpaid.  For the remainder of the EFMLEA Leave, the employee is entitled to pay at 2/3 of the higher of: (a) his or her regular rate; (b) federal minimum wage; or (c) the applicable state or local minimum wage.  The rate of pay is capped, however, at $200 per day and $10,000 in the aggregate.

Qualifying Reason for EFMLEA Leave

An employee qualifies for EFMLEA Leave if he or she is unable to work (whether in-person or remotely) because the employee is caring for his or her child whose school or place of childcare has been closed for reasons related to COVID-19.  To qualify, there must be no other suitable person to care for the employee’s child during the period of leave.

Time Requirements to Qualify for EFMLEA Leave

To qualify for EFMLEA Leave, the employee must be on the employer’s payroll for at least 30 days immediately prior to the day when the leave begins.

However, if an employee was terminated on or after March 1, 2020 and subsequently reemployed by the same employer, the employee still qualifies for leave under the EFMLEA if the employee was on the payroll for at least 30 of the 60 days prior to the termination date.

Amount of Leave

Any EFMLEA Leave taken by an employee counts against the employee’s normal twelve-week allotment of FMLA leave.  For example, if an employee uses five weeks of leave to take care of his or her child as a result of a school or childcare closure, he or she would only have 7 weeks of leave (whether under the FMLA or EFMLEA) remaining.

Similarly, if an employee has previously taken FMLA leave during the applicable twelve-month period, an employee may take up to the remaining portion of his or her twelve weeks in EFMLEA Leave.  For example, if the employee previously took 8 weeks of leave for a serious health condition, he or she would only have 4 weeks of leave remaining which could be used to care for his or her child as a result of a school or childcare closure.

Furthermore, an employee is only entitled to a maximum of twelve weeks of EFMLEA leave from April 1, 2020 through December 31, 2020, regardless of when the employer’s new twelve-month period begins for standard FMLA leave.  For example, if the employer’s twelve-month period begins on July 1, and the employee took 5 weeks of EFMLEA leave prior to July 1, the employee is still only entitled to seven more weeks of EFMLEA leave between July 1 and December 31.

Interaction with Employer-Provided Leave

An employee taking EFMLEA Leave may elect, or the employer may require the employee, to use leave that would otherwise be available (e.g. vacation time, paid time off (“PTO”), etc.) concurrently during the EFMLEA Leave.  In this event, the employer must pay the employee the full amount owed under the employer’s preexisting paid leave policy.

INTERACTION BETWEEN EPSLA AND EFMLEA

If an employee needs leave to care for a child whose school or childcare has been closed, he or she may be eligible for both Paid Sick Leave and EFMLEA Leave.  In this scenario, the benefits run concurrently.  For example, if an employee takes 12 weeks of leave to care for his or her child, the first 2 weeks could be paid under the EPSLA while the next 10 weeks would be paid under the EFMLEA.

If an employee has already used some or all of his or her Paid Sick Leave prior to taking EFMLEA Leave, then some or all of the first two weeks of EFMLEA Leave may be unpaid.  To counteract this, the employee is permitted to use preexisting paid leave provided by the employer (e.g. vacation time, paid time off (“PTO”), etc.) during the portion of EFMLEA leave which would otherwise be unpaid.  In this scenario, the employee must be compensated for this employer-provided leave in accordance with the employer’s paid leave policy.  If the employee does not elect to substitute employer-provided leave in this manner, the employee will remain entitled to any earned or accrued leave under the terms of the employer’s plan/policies.

NOTICE AND DOCUMENTATION REQUIREMENTS

Timing of Notice

An employer may not require an employee to provide advance notice of Paid Sick Leave or EFMLEA Leave.  Notice may only be required after the first workday for which an Employee takes leave under either the EPSLA or EFMLEA.

Documentation Requirements

Employees are required to provide the following documentation prior to taking Paid Sick Leave or EFMLEA Leave:

• Employee’s name;
• Date(s) for which leave is requested;
• Qualifying reason for the leave; and
• Oral or written statement that the employee is unable to work because of the qualified reason for leave.

To take Paid Sick Leave based on a federal, state, or local quarantine or isolation order, the Employee must also provide the name of the government entity that issued the applicable order.

To take Paid Sick Leave based on a health care provider’s advice to self-quarantine, the employee must also provide the name of the health care provider.

To take Paid Sick Leave to care for an individual subject to a quarantine/isolation order or health care provider’s advice to self-quarantine, the employee also must provide the name of the applicable government entity or health care provider.

To take Paid Sick Leave or EFMLEA Leave to care for a child as a result of school or childcare closures, the employee must also provide:

• The name of the son or daughter being cared for;
• The name of the school, place of care, or childcare provider that has closed or become unavailable;
• A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes Paid Sick Leave or EFMLEA Leave.

Recordkeeping

Employers are required to retain all of the above documentation for at least four years, regardless of whether the employee’s leave request is granted or denied.  If an employee provides oral statements to support his or her request for Paid Sick Leave or EFMLEA Leave, the employer is further required to document and maintain this information in its records for at least four years.

Our office will continue to provide updates as more information becomes available.  If you have any questions, please do not hesitate to contact one of our attorneys.

The Illinois State Board of Education has issued
Frequently Asked Questions for Special Education During Remote Learning at https://www.isbe.net/Documents/SPED-FAQ-04-20-20.pdf

Highlights of the Guidance include:

There is
no waiver of IDEA or Section 504 timelines.

• Remote learning days count as “school
  days” for purposes of special education timelines that are based on school days.
  However, remote learning planning days do not count as school days because
  students are not in attendance on planning days.
• Timelines based on calendar and business
  days remain in effect.
• Annual reviews must still be held if
  parents agree to hold the meeting remotely by telephone or video conference.
• Evaluation timelines remain in place, but
  face to face assessments are suspended until school resumes.  Rating scales, transition assessments that
  can be done remotely, interviews, and any other assessments that do not require
  face to face testing, should be completed.
• Early Intervention transition timelines
  remain in effect, such that an eligible child must have an IEP or continued
  IFSP in place, and receive early childhood services, by age 3.  Review of records and other assessments that
  are not face to face, should be completed.
• Due Process and mediation timelines remain
  in effect, but the school and parent may agree to extend timelines and a
  hearing officer may extend timelines. State Complaint timelines also remain in
  effect, but federal guidance allows an extension of time for exceptional
  circumstances.
• If a student turns 22 years of age during
  remote learning, that student ages out of IDEA services.
• Schools should hold Manifestation
  Determination Reviews remotely as warranted.

There is no waiver of FAPE during Remote
Learning.

• Schools should provide remote learning to
  students with disabilities that aligns as much as possible with IEP goals.
  Instruction and related services required by the IEP may be completed through
  technology platforms and telehealth services. There is flexibility in how
  services are provided and schools should find creative ways to provide
  occupational therapy, physical therapy, orientation and mobility services,
  nursing services, transition services, and all IEP services remotely.  Schools should refer to ISBE Recommendations
  for Remote Learning.
• Schools may temporarily bill Medicaid for
  telehealth services and may use outside contractors to provide services as long
  as those service providers satisfy Illinois licensure requirements.
• Students at nonpublic special education
  facilities remain the responsibility of the school district and the district
  should collaborate with the private facility to ensure that students in private
  facilities are receiving appropriate remote learning and IEP services.
• School Districts should also collaborate
  with their Special Education Cooperatives to ensure that IEP services and remote
  learning are provided.
• School districts may make placements at
  nonpublic facilities during school closure, as well as make other IEP decisions.
• FAPE remote learning requirements apply to
  students at private schools who have Individual Service Plans. The requirements
  also apply to charter schools.
• The IEP team should continue to make
  Extended School Year determinations, and these decisions are separate from later
  determining if a student with a disability should receive “compensatory” or
  modified services as a result of school closure.

Documentation
by School Districts is critical.

• Teachers and related service providers
  should carefully document services being provided to students with disabilities,
  communications with parents, and attempts to contact parents.
• Teachers and related service providers
  should continue to progress monitor on IEP goals and objectives. These
  professionals should maintain their notes to determine progress on annual goals
  and objectives.
• Document delivery of FAPE, compliance with
  timelines, accommodations provided, and methods of parental participation.
• Continue to provide Notices, IEPs and
  other documents to parents through email or mail.
• Informed written consent remains required.
  Schools should gain parental consent for evaluations, release of records,
  initial placement in special education, and other required consents, whether
  through email, electronic signatures or mail.
• Document if a parent does not agree to
  hold an IEP meeting remotely.
• Document if a parent declines remote
  learning for their child.  This does not
  constitute revocation of IEP services in general.
• Continue to document Early childhood
  outcomes and Indicator 13 transition requirements.

Please contact one of our attorneys if you
have questions regarding special education during school closure.

An important tool for school districts in fund management is
due to expire on June 30, 2020. 
Districts would be wise to employ that tool before then in order to
maintain flexibility in the use of scarce resources and, even more important,
to avoid costly tax objection refunds in the future.

Section 17-2A of the School Code has long provided a useful
mechanism for moving money between any of a school district’s three principal
operating funds: Educational, Operations & Maintenance, and
Transportation.  Since 2017, transfers
from the Tort Immunity Fund to the Operations & Maintenance Fund have also
been permitted.  Limits on the amount of
the transfer were removed long ago.  The procedural
requirements of notice and a public hearing remain. But the statute has also
contained an ill-defined usage limitation:  
a transfer may be “made solely for the purpose of meeting one-time,
non-recurring expenses.”  The
statute does not define “one-time, non-recurring expenses,” nor are there court
cases or administrative rules clarifying the meaning of this use limitation.

However, since 2003, the meaning of the use limitation has
been irrelevant because Section 17-2A has also included a sunset provision
temporarily waiving application of the use limitation to a specific date.  And, as the sunset date has approached on
each occasion in the last several years, the General Assembly has seen fit to
push the date further out.  Until this
year, that is.  No bill has even been
introduced in the 2020 session to extend the sunset provision of the use
limitation in Section 17-2A beyond June 30, 2020.

What was different this year?  Presumably, the recent removal of the
specific rate limitation for the Educational Fund for those districts subject
to the Property Tax Extension Limitation Law (PTELL or the “tax cap”) may have,
for some, lessened the urgency for flexibility in school district fund
transfers.  But even that well-received
reform still does not address districts in non-PTELL counties or existing
balances in any district throughout the State.

So right now, every district should be closely examining
the projected year-end balances in their Educational, Operation &
Maintenance, Transportation, and Tort Immunity Funds.  If there will be insufficient money in one of
those funds in the coming year, a transfer now, rather than after June 30,
should be made.  Further, if there is
much more than enough money in one of those funds, it is critical to move the
excess out now.  An allegation of
excessive balances in school district funds is one of the most common types of
taxpayer rate objections and can lead to severe revenue losses due to tax
refunds.

Going forward, unless there is another change in the law,
Section 17-2A transfers should still be available after June 30, but only for more
limited purposes, and arguably not for routine fund balance management.  Because of this, more extensive use of the
Educational Fund in PTELL counties is strongly advised.

If you have any questions or would like assistance in
accomplishing timely fund transfers, please do not hesitate to contact one of
our attorneys.

On April 9, 2020, the
Illinois State Board of Education issued additional new language (highlighted
below) as part of its emergency rule regarding State reimbursements for
payments to transportation contractors.  This
action is designed to cover payments for the contractors’ employee costs and is
not tied exclusively to the provision of alternative services.

Due to the outbreak of the Coronavirus Disease 2019 (COVID-19), beginning on March 17, 2020, and through the end of the 2019-2020 school year, to ensure the continuity of education, including the provision of any direct or related service for the health and well-being of all public school students in pre-kindergarten through grade 12, all transportation costs incurred that are beyond transporting students, such as costs paid by a local education agency for all employees related to the provision of transportation or a transportation provider under a written agreement, regardless of any service that may be provided, or costs related to the distribution of food, distribution and pick-up of student assignments and work, and use of vehicles to provide wi-fi and other similar costs, shall be allowable and reimbursed by the formula under Section 29-5 of the School Code.

23 Ill. Admin. Code
Section 120.30(e).

School districts and
joint agreements need to amend their transportation contracts if they which
wish to seek reimbursements from the State to offset payments to transportation
contractors for the period of mandatory school closure.

If you have any questions or would like assistance in drafting the terms of the contract amendments, please do not hesitate to contact one of our attorneys.

Pursuant to
Governor Pritzker’s emergency declaration and subsequent executive orders,
certain requirements of the Illinois Open Meetings Act (OMA) were suspended.  As part of Executive
Order 2020-7, Governor Pritzker suspended the OMA’s requirements
that: (1) members of a public body must be physically present (Section 2.01);
and (2) the conditions in Section 7 that limit members’ remote participation in
meetings.  Executive Order 2020-7 also encouraged
public bodies to provide members of the public with video, audio, and/or
telephonic access to meetings. These portions of Executive Order 2020-07 have
since been extended by Executive
Order 2020-18.  Along with the
Executive Orders came various questions and concerns. The Public Access
Counselor (“PAC”) at the Illinois Attorney General’s office provided additional
non-regulatory
guidance in the days that followed.

Since that time,
a complaint was filed with the PAC claiming that the McHenry County Board of
Health violated the OMA.  On March 23,
2020, the Board of Health held a virtual meeting and required that any public
comment be sent via email to a specific address two hours prior to the meeting.
The complaint alleged that this was a violation of Section 2.06(g) of the OMA,
which provides that “[a]ny person shall be permitted an opportunity to address
public officials under the rules established and recorded by the public body.”

In a non-binding letter to the complainant dated April 6, 2020, the PAC concluded that the OMA was not violated and that no further action was warranted.  The PAC noted that pursuant to his authority under the Illinois Emergency Management Agency Act, Governor Pritzker issued a series of executive orders. The PAC then analyzed the complaint and found that the actions of the Board of Health were appropriate. It noted that Section 2.06(g) of the OMA specifically permits the public to address the body in accordance with the body’s rules.  It further noted that the OMA does not provide specific mechanisms for how a public body should handle public comment during those times where the body cannot meet physically. The PAC stated that it felt that it would be illogical to construe the Open Meetings Act as barring a public body from conducting virtual meetings during public health emergencies.

This non-binding
letter is important as it provides some indication of how the PAC will review OMA
complaints during the current public health emergency. However, it is equally important
to note how limited the scope of this letter is – it does not address any
aspect of Governor Pritzker’s suspension of the requirement that a quorum of
the public body be physically present to conduct a meeting, or the suspension
of the OMA’s limitations on remote participation.  

Given the
guidance from the Attorney General and the recent PAC letter, districts and
joint agreements should consider the following with respect to any meeting:

• Avoid meeting when possible;
• If meeting is necessary, consider whether a
  completely virtual meeting will suffice;
• If meeting in person, social distancing
  requirements (six-foot separation between individuals) should be observed, and
  no more than 10 people may be in a given room (this may require opening more
  space to the public);
• Provide real-time video, audio, and/or
  telephonic access to any meeting that is conducted;
• Posting a notice of the meeting and agenda is
  still required;
• There should be a specific mechanism for public
  comment that is widely disseminated prior to the meeting; and
• Any public comment received should be read as
  part of the meeting.

We will be
following these matters in the coming weeks. If you have any questions, please
do not hesitate to contact any of our attorneys.

Since our April 1, 2020,
Priority Briefing on this subject, the Illinois State Board of Education has
issued this new informal guidance which indicated that ISBE will reimburse
districts for transportation costs under the formula of Section 29-5 of the
School Code:

74. Is ISBE reimbursing
expenditures for school bus transportation during the mandatory suspension of
in-person instruction if school buses are not running regular routes? (Updated
4/1/20)   

Contractual Payments for
Transportation are eligible for State Transportation Reimbursement in
accordance with the Part 120 Administrative Code Rules provided that the costs
paid by a school district are within an executed contractual agreement. The
amount of payments made by a school district during the mandatory closure dates
of March 17-30 as well as the Remote Learning Days that begin March 31 are
subject to negotiation by the school district and transportation contractor. If
negotiated and within the written agreement, all the paid expenditures will be
allowable for State Transportation Reimbursement in accordance with the formula
prescribed in Section 29-5 of the School Code. 

In order to more fully
understand ISBE’s position on this matter, two of our partners engaged in a
telephone conference on April 3 with ISBE’s General Counsel and Chief Financial
Officer.  Per that conversation, we want
to emphasize these aspects of ISBE’s position:

• Districts which wish to obtain reimbursements for the period during mandatory school closure must amend current transportation contracts.  Voluntary payments under old contracts which do not require payments during the cessation of services will not be reimbursed.
• Districts should specifically include such costs as distribution of food, distribution and pick- up of student assignments and work, use of vehicles to provide wi-fi and similar costs necessary to insure the continuity of education, including the provision of any direct or related service for the health and well-being of students, and all transportation costs incurred that are beyond transporting students.  These are the types of service costs which only became reimbursable via the emergency rule issued on March 31, 2020.

  In addition, however, we observe the following:

• Districts
  are under no legal obligation to amend their transportation contracts.   However, as stated above, transportation
  contracts must be amended in order for districts to receive reimbursement for any
  payments Districts choose to make during the mandatory closure period.
• Districts
  are under no legal obligation to make payments to transportation carriers when
  no services are being provided unless the transportation contract provides
  otherwise.
• Given
  the uncertainty about the authority and scope for reimbursements for the
  mandatory school closure period, districts that choose to amend their
  transportation contracts and make payments to transportation carriers should
  consider including language both to include specific reference to those
  additional types of services being provided and to protect themselves in case
  reimbursements are ultimately denied.

If you have any questions or would like assistance in drafting the terms of the contract amendments, please do not hesitate to contact one of our attorneys.

On March 31, 2020, the Illinois State Board of Education issued an emergency rule on transportation expenses.  That new rule, 23 Ill Admin. Code 120.30(e), is expressly limited to allowing State reimbursement for transportation services other than the transporting of students, such as food distribution: 

“Due to the outbreak of the Coronavirus Disease 2019 (COVID-19), beginning on March 17, 2020, and through the end of the 2019-2020 school year, to ensure the continuity of education, including the provision of any direct or related service for the health and well-being of all public school students in pre-kindergarten through grade 12, all transportation costs incurred that are beyond transporting students, such as costs related to the distribution of food, distribution and pick-up of student assignments and work, and use of vehicles to provide wi-fi and other similar costs, shall be allowable and reimbursed by the formula under Section 29-5 of the School Code.”

Note that, on March 17, 2020, the State Superintendent’s “Dear Colleagues” letter stated this about transportation expense reimburse during the school closure period:

“One question we received many times today was regarding reimbursement for school bus transportation during the closure, when school buses may not be running regular routes. The answer is that:   

ISBE will base transportation reimbursement on expenditures. All allowable transportation expenditures incurred during the closure will be claimable for Transportation Reimbursement. School districts should work with their bus contractors to make payments to ensure that all personnel, including bus monitors and bus drivers, can continue to be paid during the closure. If school districts choose to negotiate and execute a contract amendment with their bus contractors to make payments during the closure to ensure transportation personnel will be paid in full, those expenditures will be reimbursed for state Transportation Reimbursement. Consultation with the district’s legal representation is advised.”

Many reasonably interpreted this earlier statement to mean that payments to transportation service providers would still be reimbursable from the State even for the closure period when no student transportation services are being provided.  However, it now appears that the State will not be doing that.

The emergency rule does not modify the reimbursement structure to permit reimbursement for services not performed.  Further, absent an amendment to the School Code and additional rule change, ISBE does not have the legal authority to make reimbursement payments in such a manner.  

It should also be considered the State transportation grants are subject to limitations due to limited State appropriations.  

At this point, school districts would be well-advised to assume that funding for any payments to transportation vendors for services not actually rendered due to the mandatory school closures will have to come exclusively from local revenues. While statutory revisions for ISBE funding authority or financial assistance from the federal government through the CARES Act or otherwise is certainly possible, none of that can be certain right now.

If you have any questions, please do not hesitate to contact one of our attorneys. We will provide updated and additional guidance as it becomes available. 

Although Illinois schools
and joint agreements have been closed for educational purposes since March 17,
2020, students and employees may have been exposed to the novel coronavirus, or
contracted COVID-19, through school-based interactions. This novel coronavirus
is thought to have an incubation period of up to 14 days. Therefore, any school
community member who has developed symptoms of, or tested positive for,
COVID-19 since schools closed on March 17 may have been infected prior to the
statewide school closures and, consequently, exposed other students and staff
to the virus.  Moreover, many school
employees may have reported to work in-person since schools closed to
facilitate distance learning or to perform essential functions.

If a school
district or joint agreement learns that students or staff have developed
symptoms related to, or tested positive for, COVID-19 since March 17, they
should consider notifying their school community about their possible exposure
to the virus. The Centers for Disease Control and Prevention (“CDC”) and the
U.S. Department of Education (“U.S. DOE”) have issued guidance
to employers and schools
regarding how school communities may be notified about a possible exposure to
COVID-19 without violating applicable privacy laws.

 If an employee has tested positive for COVID-19, the CDC recommends that the employer inform fellow employees about their possible exposure to the virus in the workplace.  This notification should also be sent to students and parents.  The CDC warns, however, that employers are required to maintain confidentiality as required by the Americans with Disabilities Act. Therefore, any notice that is sent to, students, and parents about a possible exposure should not reveal the infected staff member’s name, or other information which could be used to identify him or her.  A similar notice may also be sent if an employee has developed symptoms of COVID-19, but not yet tested positive.  Once again, this notice should not identify the employee.

Similarly, the U.S. DOE recommends that educational institutions, including school districts and joint agreements, notify the school community if a student developed symptoms or tested positive for COVID-19 within a time frame that creates a possibility that he or she may have exposed others while attending school.  To avoid violating the Family Educational Rights and Privacy Act (“FERPA”), the DOE cautions that such notification should not include any personally identifiable information by which the student may reasonably be identified.

There may be instances when a school district or joint agreement determines that a subset of staff or students had an increased risk of exposure to an infected individual and requires a more-detailed notification in order to take appropriate protective action. If a district or joint agreement makes this determination, it should contact its attorney to review how such notification should be presented, and to prevent any privacy violations.

 If you have any questions, please do not hesitate to contact one of our attorneys. We will provide updated and additional guidance as it becomes available.