On September 20, 2018, the Illinois Supreme Court issued its much-anticipated decision in Oswald v. Hamer, a lawsuit challenging the facial constitutionality of Section 15-86 of the Property Tax Code, the nonprofit hospital property tax exemption legislation enacted by the General Assembly in 2012.   That section created a new test for tax exemptions -weighing the cost of certain beneficial services against the hospital’s estimated property tax liability – which was extremely easy for large modern hospitals to meet, even those which could not be considered “charities” under traditional standards.  But while the Supreme Court upheld the special hospital tax exemption provision of the Revenue Act as not unconstitutional on its face, it made clear that any applicant for an exemption under that provision still “must show that the subject property meets the constitutional test of exclusive charitable use.”  For that reason, the Court’s ruling is effectively a victory for school districts and other taxing bodies and should, ultimately, result in many hospitals coming onto the property tax rolls.

The Supreme Court emphasized that it was asked only whether Revenue Act Section 15-86 was invalid on its face, and the court ruled that it was not.  (The Court expressly declined the Illinois Association of School Boards’, the Illinois Association of School Administrators’, and the Illinois Association of School Business Officials’ request that it re-examine the way in which Illinois courts evaluate the constitutionality of the text of a statute.)  However, in so doing, the Court was forced to expressly say that Section 15-86 cannot dispose of the traditional constitutional definition of charitable use for hospitals.

For that reason, the practical effects of the Supreme Court’s decision are just as beneficial to school district finances as if the statute had been invalidated.  “Nonprofit” hospitals (i.e., those without shareholders) are now in no better position legally than they were before Section 15-86 was enacted in 2012; they still must show facts which demonstrate that they are truly and primarily charitable, including factors such as the public or charitable source of their funding, the dispensing of services regardless of ability to pay, and the absence of private profit or gain to those connected with the institution.

What remains to be seen is the reaction of the Illinois Department of Revenue, the various county boards of review, and local assessors to this decision.  If those agencies implement the constitutional requirement as they should, a large number of the 157 nonprofit hospitals in Illinois will become taxable and their assessed values will be considered “new property” under Property Tax Extension Limitation Law.  What we cannot say right now is how quickly and effectively this will be accomplished.  No doubt there are many issues still to be resolved in the courts.

For those Illinois school districts with nonprofit hospitals within their geographical boundaries, this may have a major impact on their revenues.  For Illinois taxpayers, this decision should bring an element a greater fairness in the distribution of their property tax burden.

Our attorneys John M. Izzo and Eugene C. Edwards submitted amicus curiae briefs in this appeal on behalf of the Illinois Association of School Board, the Illinois Association of School Administrators, and the Illinois Association of School Business Officials.

If you have any questions, please contact our attorneys in our Flossmoor Office at 708-799-6766 or our Oak Brook Office at 630-928-1200.

This morning, the United States Supreme Court issued its anticipated decision regarding fair share agreements and the related deductions from the wages of public sector employees.  (Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al.)  The Court determined that an “agency fee” or “closed shop” which compels payment to a union by public employees violates the First Amendment.  It specifically stated that, “neither an agency fee nor any other payment to the union” may be deducted absent the affirmative consent of the public employee without violating the Constitution.  According to the Court, in order to be effective, the waiver of the employee’s right to refuse to submit payment must be freely given and the consent to payment must be shown by “clear and compelling evidence.”  The Court stated that, “Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”

Based upon this language within the opinion, we believe that the holding applies to the withholding of wages for both union dues and fair share fees.  You should immediately cease withholding union dues and fair share fees for all public employees unless you have a signed authorization form or card from each specific employee allowing such a deduction.  In our opinion, a list of authorized employees provided by a union does not demonstrate “clear and compelling” evidence.  You may have previously been provided signed authorizations from the unions or individual employees who have affirmatively consented to have union dues deducted from salary.  If you have not previously received these signed authorizations, however, we advise that you request the authorizations from the unions and cease withholding such payments until you receive the signed authorizations.  Lastly, if you receive a written request from a union member to cease withholding union dues and/or fair share fees, it is our opinion that you should do so immediately.

We realize that the payroll schedules will differ from employer to employer, and for different bargaining units within the same employer, we can help to navigate these issues at your request.

Attorneys in our Flossmoor (708-799-6766) and Oak Brook (630-928-1200) offices stand ready to assist with any questions you may have.

The Illinois State Board of Education (ISBE) has released long awaited updated guidance on medication administration in schools which can be found at https://www.isbe.net/Documents/Guidance-on-Medication-June-2018.pdf

The new guidance gives school districts 13 points to include in their school medication polices:

(1)    a Registered Nurse (“RN”) should begin the process of reviewing any request to administer medication at school;

(2)    school staff should only administer medication that is “absolutely necessary for the critical health and well-being of the student” to reduce any interruptions to the student or classes;

(3)    administrators and the RN should reserve the right to refuse to administer medications and should communicate the reasons to the parents and prescriber;

(4)    all medication requires parental consent and medical authorization;

(5)    the school may elect to permit a parent to administer the medication;

(6)    medication requests should only be valid for specific timeframes;

(7)    medications should be in official, properly labeled containers;

(8)    specific self-administration rules should be in place;

(9)    “standing orders” for administration of certain medications or medications (e.g. epinephrine) that are kept in stock should be identified;

(10)identify who will administer the medication;

(11)whether violation of the policy will subject a student to discipline;

(12)the manner of disposing of any medication remaining at the end of the school year or treatment; and

(13)the policy should be available in as many formats, media, and languages as needed to inform parents, students, and staff.

The majority of the new guidelines focus on four elements of Section 10-22.21b of the School Code:

(1)    administration of medication to students should be discouraged unless absolutely necessary for the critical health of the student;

(2)    neither teachers nor non-administrative staff, other than school nurses, should be required to administer medication to students;

(3)    districts may have policies for self-administration of medication; and

(4)    school employees are permitted to provide emergency assistance to students. The new guidance addresses common questions about each of these elements.

ISBE suggests that the administration of medication includes any act to deliver the medication, including preparing it or laying it out for the student. A nurse may delegate the administration of medication that can be taken by mouth or on the skin, but may not do so if the medication is delivered by any other method. The guidance applies to any time the student is at school or at any school-related activity. Medications are absolutely necessary when used to treat life-threatening conditions or any condition that has no other suitable treatment. The rules apply to some substances that might not be considered “medication” by some, including aromatherapy, herbal substances, and oxygen, and regardless of whether the substance is prescription or over-the-counter, it requires a note from the health care provider. These rules apply regardless of whether the student is at the school, on a field trip, athletic event, or any other school-related activity. Ultimately, ISBE’s guidance is that medications should be administered only in limited circumstances and only with the participation of the school, the parents, and the health care provider. Note that, under current law, if a student is an approved medical marijuana patient, that the student must leave school grounds to administer the treatment.  However, legislation allowing a parent to come onto school grounds or a school bus to administer medical marijuana  to a qualifying patient has passed both houses of the legislature and awaits the Governor’s signature.

In accordance with the amended Nurse Practice Act, ISBE has proposed amendments to current regulations. Although there have been a number of questions in the past about what activities a nurse could delegate to non-nurses, the revised Nurse Practice Act, effective 9/20/17, addresses this issue. The Act permits a nurse to delegate medication administration and some other nursing activities to a non-nurse in a school setting if the nurse is comfortable with the student’s safety and the staff member’s competence to do so. The nurse, however, is never required to delegate authority, and a non-nurse is not obligated to accept the responsibility of administering medication or performing any other nursing activity if they are uncomfortable doing so.

The guidance also reiterates that schools are required to permit students to self-carry and self-administer medications for severe allergic reactions, acute asthma episodes, and diabetes. However, in all other circumstances, schools are not required to permit students to self-carry and self-administer other medications, and may enforce “drug-free school” policies.

Finally, the guidance reminds school officials that they are always permitted to administer emergency assistance to students. All staff members should be able to identify common emergencies to notify the school nurse and/or emergency services. This extends to the stocking of epinephrine and narcotic antagonists and the training of staff to administer those medications. In the event either of these medications are administered, a report should be made to ISBE within three days.

The final pages of the guidance include sample procedures and documents for districts to review as they create their own policies. Attorneys in our Flossmoor (708-799-6766) and Oak Brook (630-928-1200) offices can assist with any questions you may have about the guidance or policies.

On April 20, 2018, the U.S. Department of Education released a Frequently Asked Questions (“FAQ”) document relating to the privacy of student-identifying photographs and surveillance videos.  The FAQ, located here, addresses multiple aspects of the Family Education Rights and Privacy Act (“FERPA”). As to whether photographs or videos could be considered “education records” or student records, the FAQ generally provides that where a photo or video (1) “directly relates” to a student and (2) is maintained by the school/party acting for the school, then it would be considered a student record. Whether a visual representation is directly related to a student – rather than incidentally related to the student – is a context-specific determination.  The FAQ includes examples of directly related records, such as a depiction of activity involving a student in an act of disciplinary misconduct, audio or video content containing personally identifiable information, or content that intends to make a specific student the focus of the photograph or video.  Where, however, a student’s image is captured as part of a background or is incidental in the depiction, the FAQ clarifies that a student record is not created.

The new FAQ also addresses whether the same photograph or video can be the school record of more than one student, detailing that parents may inspect and review or “be informed of” the specific information pertaining to the parents’ own children.  When a school cannot – without otherwise destroying the meaning of the photograph or video – segregate or redact information so that no other student information is presented, the school may nonetheless permit parents to inspect and review the record. The FAQ indicates that the school is in the best position to make the determination of whether the meaning of the photograph or video would be destroyed by segregating or redacting the video.  The FAQ also emphasizes that the Act does not require the district to provide a copy of the video to parents.

The FAQ also addresses issues such as a prohibition against charging parents for redaction or segregation (e.g. blurring or cutting/excerpting) photographs and video surveillance; and a requirement to permit the legal representatives of a parent to be present with the parent to inspect and review photographs or videos.

The recent FAQ is hot on the heels of an earlier letter also addressing the application of FERPA to videos involving multiple students. “Letter to Wachter,” located here, was in response to an attorney’s inquiry asking whether a surveillance video capturing images of student misconduct that was maintained by a school district constituted a school student record under the Act.  In the attorney’s scenario, a school district’s surveillance system captured video footage of eight students – six students forcing two students into the school’s wrestling room where the two victims were hazed.  This attorney indicated that the district could not afford to blur the faces of the students in the video and was unsure how to treat the records, which it used to mete out discipline to the offending students.  In response to the inquiry, the U.S. Department of Education’s Chief Privacy Officer emphasized the right of parents to inspect and review education records or “be informed of” the specific information pertaining to their own children.  Where possible, however, the Chief Privacy Officer indicated that districts should utilize available technology to blur students and cut portions of video to reflect a student’s singular involvement.

Attorneys in our Flossmoor (708-799-6766) and Oak Brook (630-928-1200) offices stand ready to assist with any questions you may have about the FAQ or Letter to Wachter.  In addition, if you have additional questions about the maintenance and retention of student records in general, please contact one of our attorneys.

Under the Illinois School Student Records Act (“ISSRA”), certain school student records information, called “directory information,” which includes student names, addresses and other information as identified by the Illinois State Board of Education (“ISBE”), can only be released in accordance with ISBE rules.  Under the ISBE rules, unless a parent requests that some or all of their child’s information be restricted, directory information may be released to the general public.  In addition, the rules require that school districts provide annual notice to parents regarding directory information and the procedure to opt out of release of directory information.

Beginning in January, ISBE took steps to amend the ISSRA rules to, among other things, change what constitutes directory information.  At the January 17, 2018, Board meeting, ISBE adopted a change that would delete “gender” from the list of what constitutes directory information.

The ISBE-adopted change was approved by the Joint Committee on Administrative Rules (JCAR) at its March 2018 meeting, and the change was recorded in the Illinois Register (Volume 42, Issue 12) on March 23, 2018.  The effective date of the amendment is March 15, 2018.  This amendment will require revisions to student records policies, procedures and handbook language.  A copy of the approved, amended rule is available at: https://www.isbe.net/Documents/375_wf.pdf.

ISBE’s rules specifically designated gender as an item of directory information. As revised, items of directory information now include the following:

• Student and parent names;
• Mailing addresses, electronic mail addresses and telephone numbers;
• Grade level;
• Birth date and place;
• Information connected to school-sponsored activities/organizations and athletics;
• Academic awards/honors/degrees;
• Major field of study;
• Period of attendance in the school; and
• Certain student photographs, videos and digital images, so long as the photograph does not highlight individual faces for commercial purposes without parent consent

The rule change is in line with a now-revoked Dear Colleague Letter from the U.S. Department of Education.  The May 13, 2016, Letter addressed the topic of transgender students, and in part determined that directory information disclosure of sex, including transgender status, could be harmful or an invasion of privacy. That Letter was revoked on February 22, 2017, in a subsequent Dear Colleague Letter that said the Department of Education and Department of Justice have decided to further and more completely consider the legal issues involved.

Attorneys in our Flossmoor (708-799-6766) and Oak Brook (630-928-1200) offices stand ready to assist with reviewing and revising Board Policies and other District documents addressing the above amendment.  In addition, if you have additional questions about the ISSRA in general, please contact one of our attorneys.

The U.S. Department of Education’s Office of Special Education Programs (“OSEP”) released nonregulatory guidance discussing the U.S. Supreme Court’s recent unanimous decision in Endrew F. v. Douglas County School District. Endrew F. settled a dispute amongst U.S. Circuit Courts of Appeal on whether a FAPE required an “educational benefit ‘[that is] merely…more than de minimis’” or something more. The Endrew F. holding is clear: “The IDEA demands more,” that a school district must offer a program that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” We reviewed the Endrew F. decision in more detail in an earlier Priority Briefing, which can be accessed here.

OSEP developed a Q&A document to provide parents and stakeholders information on the issues addressed in Endrew F. and the impact of the decision on the implementation of the IDEA. In the guidance, OSEP addressed what it means to have an individualized education program (“IEP”) that is reasonably calculated to provide a FAPE. According to OSEP, in order to have a “reasonably calculated” IEP, the student’s IEP team must make prospective decisions informed by the expertise of educators, the child’s progress, the child’s potential for growth, the views of the child’s parent, and the effectiveness of past services. Factors that help to determine whether or not an IEP is reasonably calculated to confer a FAPE include the previous rate of academic growth, whether a child is on track to achieve grade level proficiency, any behaviors interfering with the child’s progress and any additional information provided by parents.

OSEP also considered what it means to demonstrate “progress appropriate in light of the child’s circumstances,” clarifying that the phrase means designing a program with careful consideration to a child’s present levels of achievement, disability and potential for growth. In this respect, each child must be offered an IEP designed to provide access to state academic standards and general education instructional strategies and curricula.

If a child is not making progress at the level expected, OSEP explained that the IEP team should meet periodically during the course of the school year and revise the IEP to address the lack of progress, including considering goals, interventions, services and placement. In addition, the IEP team should consider behavior interventions if behavior is impeding a child’s progress. OSEP also recommended examining the school district’s practices for communicating with parents.

The OSEP guidance emphasized that there is no one-size-fits-all approach to educating students with disabilities and that program determinations must be individualized. To ensure appropriate progress under Endrew F. standards, boards of education and IEP teams should implement policies, procedures and practices addressing (1) the identification of present levels of academic and functional performance, (2) setting measurable goals, (3) determining how to measure and report progress, and (4) providing appropriate services, aids, accommodations and modifications, supports for school staff.

Attorneys in our Flossmoor (708-799-6766) and Oak Brook (630-928-1200) offices stand ready to assist with reviewing and revising Board Policies addressing the above standards. In addition, if you have additional questions about the OSEP guidance, the Endrew F. decision or the current standard used by the Seventh Circuit to determine an appropriate education, please contact one of our attorneys.

The Illinois School Code has been amended to codify the practice of accelerating students in certain subjects or grades.   Public Act 100-421 amends Article 14A of the Illinois School Code by requiring school districts to adopt a policy regarding the accelerated placement of students.  Pursuant to the new law, “accelerated placement” means, but is not limited to, early entrance into kindergarten or first grade, accelerating a student in a single subject, and grade acceleration.  Each district’s policy must contain certain components:

1. A provision which provides that participation in accelerated placement is not limited to those children who have been identified as gifted and talented, but rather is open to all children who demonstrate high ability and who may benefit from accelerated placement.
2. A fair and equitable decision-making process that involves multiple persons and includes a student’s parents or guardians.
3. Procedures for notifying the parents or guardians of a child of a decision affecting that child’s participation in an accelerated placement program.
4. An assessment process that includes multiple, valid reliable indicators.

The policy may also contain certain other components such as:

1. Procedures for annually informing the community at-large, including parents or guardians, about the accelerated placement program and the methods used for the identification of children eligible for accelerated placement.
2. A process for referral that allows for multiple referrers.
3. A provision which provides that children participating in an accelerated placement program and their parents or guardians will be provided a written plan detailing the type of acceleration the child will receive and strategies to support the child.

The Act is effective July 1, 2018. We expect that IASB’s Policy Services will soon issue a PRESS model policy which satisfies the requirements of this new law.  However, the law appears to leave considerable discretion to districts to develop policies aligned to the district’s mission and vision for accelerating students.   We therefore recommend that districts carefully review the model policy before adopting it. In addition to the policy itself, districts will need to adopt and implement procedures and processes required by the policy and this public act.

If you have questions about this topic, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

The Illinois legislature recently amended the Illinois School Student Records Act (“ISSRA”). The changes to ISSRA by Public Act 100-0532 are effective immediately and require school districts to comply with student records requests more quickly.

Previously, a school district had days to respond to a parent’s or student’s request to inspect and copy student records within 15 school days of its receipt of the request. Now, school districts generally have only 10 business days after receipt within which to respond.

A school district may, however, extend the time to respond by up to five (5) business days.   The reasons are analogous to the reasons a school district can extend the time to respond to a request made under the Freedom of Information Act, i.e.:

1. The requested records are stored in whole or in part at other locations than the office having charge of the requested records;
2. The request requires collection of a substantial number of specified records;
3. The request is couched in categorical terms and requires an extensive search for records responsive to it;
4. The requested records have not been located in the course of a routine search and additional efforts are being made to locate them;
5. The request cannot be complied with by the district within the time limits without unduly burdening or interfering with the operation of the school district; or
6. There is a need for consultation, which shall be conducted with all practicable speed, with another public body or school district, or among two or more components of a public body or school district, having a substantial interest in the determination or in the subject matter of the request.

Also, as with the Illinois FOIA, the person making the student records request and the school district may agree in writing to extend the time for compliance for a period to be determined by the parties. If the requester and the school district agree to extend the period for compliance, failure by the school district to comply with any previous deadlines shall not be treated as a denial of the request for the records.  The statute does not provide a mechanism for resolving situations when the parties cannot agree to extend the period for compliance.  In those scenarios, the statute appears to require compliance within the timeframes described above.

If you have questions about this topic, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

A provision within the recently passed school funding legislation (SB1947, enacted as Public Act 100-465) allows voter-initiated referenda to reduce property taxes for certain school districts in Illinois.  The threshold for districts to be subject to such a possible referendum is 110% of the district’s adequacy target for local taxing capacity, as determined under the State Aid formula, in the school year preceding the year in which the reduction in the levy is sought.  “Adequate funding” or “adequacy” refers to what it costs for a school district to provide the evidence-based practices that drive student achievement.  The referendum may only be held at a consolidated election, the one held in April of odd-numbered years when school board candidates are on the ballot.

This rather complicated new law is best explained with an example. Since the next consolidated election is in April 2019, we’ll use the 2018 and 2019 levies and the 2018-2019 school year for illustrative purposes only.   Thus, under the new law, if District A’s adequacy target exceeded 110% for the 2018-2019 school year, then the voters in District A could file a petition with their election authority (i.e., the County Clerk, or the Election Commission where that agency exists) for a referendum seeking to reduce District A’s tax levy in 2019.  A referendum would be put on the ballot on the next consolidated election, but only if more than 10% of the voters in the school district signed the petition.  The referendum question would ask voters whether they wish to reduce the educational fund tax levy extension for 2019 to an amount less than that extension in 2018.  However, the proposed lower amount for 2019 that would be stated in the referendum cannot be more than 10% lower than the 2018 educational extension and the 2019 extension amount cannot be in an amount that would cause the district’s adequacy target to fall below 110%.  For example, if the 2018 adequacy target is 122%, the lowest the 2019 adequacy target could be after a successful referendum reducing the tax levy is 112%.   On the other hand, if the 2018 adequacy target is 117%, the lowest the 2019 adequacy target could be after a successful referendum reducing the tax levy is 110%.

Although the concept is complicated, the law mandates that the following simple question be put forth to the voters:

“Shall the amount extended for educational purposes by [School District A] be reduced from [2018’s %] to [2019’s %] for [2019], but in no event lower than the amount required to maintain an adequacy target of 110%?”

Voters would vote either “yes” or “no” in response to this question and, if a majority of votes cast is in favor of the referendum, then the tax levy would be reduced for 2019.  Regardless of the outcome of the referendum, the question cannot be submitted to the voters again at any of the next two consolidated elections.  In our example, then, if there were a referendum held in April 2019, the next time there could be a tax reduction referendum would be in April 2025.

Clearly, the impact of this new state law, which is codified at 35 ILCS 200/18-206, could be substantial.   School districts with adequacy targets above 110% stand to lose local property tax funding thereby reducing the district’s educational fund.  To see your district’s most current adequacy target (as of May 2017) and whether your district is meeting or exceeding the 110% threshold, go to the link below from the ISBE website, click the tab under House Amendment 1 to Senate Bill 1, and look for the number applicable for your district in column 21:

https://www.isbe.net/Pages/Education-Funding-Proposals.aspx.

If you have questions about these topics, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

Public Act 100-163 amends the Illinois School Code beginning on January 1, 2018 to require that school districts make feminine hygiene products available at no cost to students in the bathrooms of all school buildings serving students in grades 6-12.  Please note that the term “feminine hygiene products” includes both tampons and sanitary napkins.  School districts impacted by this new statute should consider what type of dispensary system will be needed to comply in addition to considering which employees will be responsible for stocking and restoring the products and how frequently these items will be replenished.  While there are not yet any regulations regarding this topic, we advise that these items should be inspected and restocked on a daily basis.

Public Act 100-029 requires school districts to make breastfeeding accommodations available if there are students who need them.  These accommodations include, but are not limited to: (a) access to a private and secure room, other than a restroom, to express breast milk or breastfeed an infant child which has a power source for the use of a breast pump if necessary, (b) allowing a breast pump and other related equipment used to express breast milk, (c) access to a place to store breastmilk safely and (d) providing the student with a reasonable amount of time to express breastmilk or to breastfeed.  Given these requirements, we believe that a private room with a lock should be made available to the student and that providing access to an area in the nurses’ office or a locker room where other persons may be present is not sufficient.  In addition, as the statute makes clear, a breast-feeding child must be permitted to be on grounds for purposes of feeding if requested by the student.  Lastly, we would recommend that there be a dedicated refrigerator in a secure area under the supervision of an employee for the student(s) to store expressed breast milk.  If the same refrigeration unit is going to be used for multiple students, an identification system should be created so that each individual student can clearly mark the expressed breast milk that belongs to her.

Public Act 100-029 provides further that the nursing students must not suffer academically based upon the choice to breastfeed.  Specifically, the student must not incur an academic penalty as a result of her decision to utilize the accommodations required by law and she must be provided the opportunity to make up any work missed due to utilizing these accommodations.  It is our suggestion to work with any student who needs to breastfeed or express breastmilk to develop a schedule that will allow the student to utilize these accommodations with as little disruption to educational instruction as possible or to provide instructional materials that the student may be able to review while expressing breast milk.  Please recognize, however, that the nature of the accommodations will almost undoubtedly lead to some missed class time and that the student may need to utilize the accommodations multiple times during the school day.

The last component of the new law is a requirement that there be a grievance procedure for alleged violations of the statute.   This process is the same as that utilized under the current sex equity requirements, which should already exist in Board Policy.  This existing policy can simply be amended to permit complaints alleging a violation of the breastfeeding accommodations of the School Code.

If you have questions about these topics, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).