Guidance on the Education Stabilization Fund and its Implications

To Our School Board Community:
On March 27, 2020, the President signed H.R. 748, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. The Act, among other things, establishes funding for the Education Stabilization Fund, whereby the Secretary will issue grants to each State, which may be used to provide emergency support to local educational agencies. Upon receipt of the funds, the State will distribute them to the local educational agencies deemed to have been most significantly impacted by coronavirus in order to support their ability to continue to provide educational services to their students and to support the on-going functionality of the local educational agency. Of these funds, the Secretary shall make elementary and secondary school emergency relief grants to each State educational agency with an approved application.
An elementary or secondary school that receives funds under the Education Stabilization Fund may use the funds for any of the following:
  1. Any activity authorized by the Elementary and Secondary Education Act of 1965;
  2. Coordination of preparedness and response efforts of local educational agencies with State and local public health departments, and other relevant agencies, to improve coordinated responses among such entities to prevent, prepare for, and respond to coronavirus;
  3. Providing principals and others school leaders with the resources necessary to address the needs of their individual schools;
  4. Activities to address the unique needs of low-income children or students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth, including how outreach and service delivery will meet the needs of each population;
  5. Developing and implementing procedures and systems to improve the preparedness and response efforts of local educational agencies;
  6. Training and professional development for staff of the local educational agency on sanitation and minimizing the spread of infectious diseases;
  7. Purchasing supplies to sanitize and clean the facilities of a local educational agency, including buildings operated by such agency;
  8. Planning for and coordinating during long-term closures, including for how to provide meals to eligible students, how to provide technology for online learning to all students, how to provide guidance for carrying out requirements under the Individuals with Disabilities Education Act and how to ensure other educational services can continue to be provided consistent with all Federal, State, and local requirements;
  9. Purchasing educational technology (including hardware, software, and connectivity) for students who are served by the local educational agency that aids in regular and substantive educational interaction between students and their classroom instructors, including low-income students and students with disabilities, which may include assistive technology or adaptive equipment;
  10. Providing mental health services and supports;
  11. Planning and implementing activities related to summer learning and supplemental after school programs, including providing classroom instruction or online learning during the summer months and addressing the needs of low-income students, students with disabilities, English learners, migrant students, students experiencing homelessness, and children in foster care;
  12. Other activities that are necessary to maintain the operation of and continuity of services in local educational agencies and continuing to employ existing staff of the local educational agency.
Notably, the Act provides a caveat for local educational agencies who receive funds under the Education Stabilization Fund. Specifically, the Act states:
A local education agency, State, institution of higher education, or other entity that receives funds under “Education Stabilization Fund”, shall to the greatest extent practicable, continue to pay its employees and contractors during the period of any disruptions or closures related to coronavirus.
We believe that this caveat only applies to districts that receive funds under the Education Stabilization Fund. That said, we caution any districts that desire or intend to receive resources under the Education Stabilization Fund to expect to have to pay all employees and contractors during the mandated school closures. This will undoubtedly include contractors who operate school bus services and the like.
This message is not intended to substitute for our legal advice to our clients based on their specific needs or requests. In addition, our guidance is subject to and can be superseded by new laws, rules, regulations, or orders. Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict so please contact us for assistance.

Important COVID-19 Special Education Related Services Update

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time, given the unprecedented challenges presented to our Boards with COVID-19 and the school closure to students.  We have been providing guidance on how best to meet the needs of your students, staff, and community. Last week we made you aware of pending legislation regarding the use of virtual technologies to provide students with related services. The pending legislation has not been signed by the Governor at this time. However, the State Board of Education voted to allow Commissioner Repollet to sign a temporary relaxation of the rules, “Notice of Rule Waiver/Modification/Suspension.” This emergency adoption of a temporary regulation was signed and takes effect today, April 1, 2020.

The temporary regulation provides in relevant part:

  • Schools shall ensure students with disabilities are provided the same educational opportunities provided to their nondisabled peers through electronic communications, virtual, remote, or other online platforms, as appropriate.
  • Related services to students with disabilities shall be provided through electronic communications, virtual, remote, or other online platforms, as appropriate and as required by the student’s IEP to the greatest extent possible.
  • Allowing the use of electronic communications, virtual, remote, or other online platforms ensures students with disabilities are provided the services they are entitled to, as set forth by a student’s individualized education program (IEP), during extended school closures.

The provision of remote services should still be considered on a case by case basis, and should be consistent with the child’s IEP. Compensatory services may still be necessary once the current health emergency has ended. Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests.  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.  Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks.

Authored by: Kasi M. Gifford, Esq.

NJSIAA Answers Questions About COVID-19 and Spring Sports

March 26, 2020
Kasi M. Gifford, Esq.

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time, given the unprecedented challenges presented to our Boards with COVID-19 and the school closure to students.  We have been providing guidance on how best to meet the needs of your students, staff, and community. One of the most unfortunate side effects of the COVID-19 outbreak has been the postponement of the Spring Athletic Season for student athletes. On March 25, 2020, NJSIAA posted a new set of FAQs to their website. The notable highlights include the following:

  • All NJSIAA staff are working remotely.
  • All NJSIAA meetings are taking place virtually.
  • No NJSIAA member school, school district, or coach may conduct practices, scrimmages, or games (which includes all official interscholastic contests). 
  • This is a mandatory period of no in-person contact between coaches and their student-athletes. 
  • During the governor’s statewide shutdown of all schools, no practices, scrimmages, or games may be held.
  • This includes any event organized by a parent, captain, or other student-athlete.
  • These restrictions relate to all sports, not just spring sports.
  • Coaches may interact virtually with their student-athletes, including providing workouts or training materials.
  • However, such virtual contact – as well as any activity that may result from it – must strictly conform to all directives in effect related to the coronavirus outbreak and social distancing guidelines.
  • In addition, any virtual contact and resultant activities must be entirely in keeping with all NJSIAA in- and off-season protocols.
  • NJSIAA will determine the length of the regular season once a school opening date has been announced.
  • All tournaments are subject to change at this point. 
  • NJSIAA is evaluating options for the annual business meeting.
  • The annual scholarship lunch-in has been cancelled. NJSIAA will still be taking nominations and will send each winner a certificate and a gift. Monetary scholarships will not be awarded this year.

Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests.  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.  Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks.

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COVID-19 Closures Added Allowable Use of New Jersey’s Earned Sick Leave Law

March 26, 2020
Kasi M. Gifford, Esq. 

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time, given the unprecedented challenges presented to our Boards with COVID-19 and the school closure to students.  We have been providing guidance on how best to meet the needs of your students, staff, and community. On March 25, 2020, Governor Murphy signed Senate Bill No. 2304, which amends the New Jersey Earned Sick Leave law to include provisions allowing employees to use their earned sick leave during a public health emergency. Specifically, the Bill added additional situations in which earned leave can be used and added that earned sick leave may specifically be used during any:

  1. time during which the employee is not able to work because of:

(a) a closure of the employee’s workplace, or the school or place of care of a child of the employee by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency 

(b) the declaration of a state of emergency by the Governor, or the issuance by a health care provider or the Commissioner of Health or other public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would  jeopardize the health of others;

 (c) during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare 

official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others; or…

We wanted to make you aware of this addition as it applies to anyone who is entitled to earned sick leave. Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests.  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.  Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks. 

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Pending COVID-19 Legislation and Virtual Learning Requirements

by: Kasi M. Gifford

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time, given the unprecedented challenges presented to our Boards with COVID-19 and the school closure to students.  We have been providing guidance on how best to meet the needs of your students, staff, and community. We have received questions concerning remote instruction of students generally, as well as the legality of providing related services to special education students via remote instruction. While no law on the subject has been signed into legislation thus far, we anticipate legislation to be signed into law by the Governor sometime in the near future. We anticipate the bill will provide in part:

  • If a program of virtual or remote instruction is implemented for the general education students the same educational opportunities shall be provided to the special education students, to the extent appropriate  and practicable.
  • Speech language services and counseling services may be delivered to special education students through the use of electronic communication or a virtual or online platform, as appropriate.
  • Anticipated requiring the Commissioner to create further guidance on all virtual home instruction.

As of 5:00 p.m. on March 24, 2020, THIS BILL HAS NOT BEEN SIGNED. We will alert you when this legislation is signed!

Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests.  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.  Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks.

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Date Extended: Cooper Levenson Foundation Accepting Scholarship Applications

Deadline Date Extended: May 15, 2020

ATLANTIC CITY, N.J.  March 23 , 2020 -Cooper Levenson Foundation, Inc. is offering college scholarship grants to high school seniors residing in the firm’s practice areas, including Atlantic, Cape May and Camden Counties in New Jersey. Candidates must demonstrate academic excellence, active involvement as a volunteer, and financial need, and must be planning to enroll as a full-time student at an accredited two- or four-year university.

“We believe that investing in the education of the next generation is one of the best ways to insure the continuous improvement of a community,” said Lloyd D. Levenson, chief executive officer. “We’re pleased to be able to help high school seniors who demonstrate civic responsibility and academic achievement despite challenges. These are our leaders of tomorrow.”

The application requires sections to be completed by a teacher or school administrator and a volunteer coordinator, and letters of recommendation from each. Students also must furnish an official copy of their high school transcript, proof of SAT or ACT composite score, answers to two essay questions, a Student Aid Report (SAR) report, copy of the submitted Free Application for Federal Student Aid (FAFSA) and a letter of eligibility for a Pell Grant, if applicable.

Scholarship applications are available online here or through high school guidance offices in Atlantic, Cape May and Camden Counties. To be eligible for a scholarship award, applications must be hand delivered or mailed, and received before 5 p.m. on May 15, 2020 at Cooper Levenson Foundation Inc., attn: Donna Vecere, Director of Marketing, 1125 Atlantic Avenue, Atlantic City, N.J. 08401. Email submissions will be accepted. Please email to Angela Robinson at arobinson@cooperlevenson.com.

Cooper Levenson is a full service law firm since 1957, with 67 attorneys and New Jersey offices in Atlantic City and Cherry Hill. The firm has regional offices in Bear, Del., and Las Vegas, Nev. For more information, visit www.cooperlevenson.com.

2020 Cooper Levenson Foundation Scholarship Application

Guidance on New School Meal Distribution Act

March 21, 2020
Elizabeth White, Esq.

To Our School Board Community:

On March 16, 2020, the Senate and General Assembly of the State of New Jersey signed an Act requiring school districts to provide school meals or meal vouchers to students eligible for free and reduced price school meals during school closures due to COVID-19. Below we have highlighted the important the important things you should know:

  • In the event a board of education is directed to close due to COVID-19, the district shall implement a program during the closure to provide school meals to all students enrolled in the district who are eligible for the free and reduced price school lunch and breakfast programs.
  • The district shall identify one or more school meal distribution sites that are walkable and easily accessible to students in the district. Distribution sites may include but are not limited to:
         -Faith-based locations
         -Community centers
         -Locations in the district where summer meals are available
  • If a district includes high density housing, the district must make every effort to identify a distribution site in that housing area.
  • In cases where a distribution site is not within walking distance for some students, the district shall identify these students and distribute the school meals to the student’s residence or bus stop along an established bus route provided the student, parent, or guardian is present at the bus stop for distribution.
         -Food distributed in this manner may include up to a total of three school days’ worth of food per delivery.

    • Districts may use school buses owned and operated by the district to distribute school meals. If a district does not own or operate its own buses, the district may contract for the distribution of school meals- these contracts shall not be subject to public bidding requirements.
           -*Note: This may be an opportunity to continue to pay for contracted transportation services.
  • If a district is unable to provide school meals, the district shall establish a food voucher system for eligible students. The voucher system shall provide funds to enable students to access nutritious food at food retail stores.
  • The State will bear any costs not reimbursed by the federal government which are incurred by the school districts in effectuating the provisions of this Act.

This message about recent developments is not intended to substitute for our legal advice to our clients based on their specific needs or requests.  In addition, our guidance is subject to and can be superseded by new laws, rules, regulations, or orders. Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict so please contact us for assistance.

If you have any questions regarding the requirements of this Act, please do not hesitate to contact us.

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Changes to OPMA and OPRA in Response to COVID-19

March 21, 2020
By: Kasi Marie Gifford, Esq.

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time, given the unprecedented challenges presented to our Boards with COVID-19 and the school closure to students.  We have been providing guidance on how best to meet the needs of your students, staff, and community. On March 20, 2020, Governor Murphy signed Assembly Bill 3850, An act concerning the conduct of public meetings during periods of emergency and supplementing P.L.1975, c.231 (C.10:4-6 et seq.) (the “Act” or “Bill”). 

This bill explicitly authorizes a public body to:

  • conduct a meeting and public business, cause a meeting to be open to the public, vote, and receive public comment by means of communication or other electronic equipment during a state of emergency, public health emergency, or state of local disaster emergency. 
  • The bill also allows a public body to provide notice of meetings electronically through the internet during that time, but 
  • requires that public bodies who exercise this option limit, to the extent practicable, the public business conducted at that meeting to matters necessary for the continuing operation of government and that relate to the applicable emergency declaration, i.e. bills, or resolutions directly related to the emergency.

Notably, our previous guidance was that Boards should have the Superintendent and BA present at the advertised location during the Board Meeting in order to facilitate public comment for any members of the public that may choose to appear. However, this Bill explicitly gives Boards permission to hold fully virtual meetings, without the need to advertise a public location, where the public can appear. Therefore, no one will have to be physically present for Board meetings moving forward during this public health emergency.

In addition to the above, Governor Murphy also signed Assembly Bill No. 3849, which relaxes the strict seven (7) day response time imposed by the New Jersey OPRA statutes. The bill modifies those deadlines in the event of a public emergency to require instead that a records custodian make a reasonable effort to respond within seven business days, as circumstances permit.

Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests.  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.  Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks.

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Contracted Services to Boards of Education during COVID-19

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time given the unprecedented challenges presented to our Boards with COVID-19 and the school closure to students.  We have been providing guidance on how best to meet the needs of your students, staff, and community.  We now have received several questions regarding payment for contracted services.  These services are generally provided by another entity, which employs the individuals, as opposed to the Board directly employing the staff.  Examples of contracted service workers can include bus drivers, cafeteria workers, maintenance or grounds workers, custodial workers, paraprofessionals, related service providers and many others.  While this situation is both evolving and fluid, and this guidance is of course subject to any newly enacted Federal, State, or local laws, rules, regulations or orders, in evaluating your relationship with your contracted service provides we think you should consider the following items:

  • You generally do not pay for services you do not receive, so ask is work under the contract still being performed?  A Board should of course pay for goods and services rendered, and do so as expeditiously as possible as many small businesses may be relying on their contracts with public entities.   Please see our guidance regarding holding meetings to ensure payments can be approved as well as our guidance regarding emergency contracting.  While it is unlikely that bus drivers or paraprofessionals are working, IT support, maintenance and grounds, nursing and other related service providers may still be working.  Check with the contractor.
  • Can work be conducted remotely by contracted service providers?   Some work, like writing reports, evaluating testing results, etc., may be able to be performed remotely.   Maybe there’s a way to remotely provide related services such as speech, PT, OT or other services by video conference?   Can you provide technology to your students so that they can benefit from such services?  This may be important in making your good faith efforts to provide FAPE to your students identified as eligible for special education and related services.  IEP meetings may need to be scheduled so that parents and providers appear remotely.
  • Federal legislation was just passed that may provide some relief to the contractors.   Ask your contractor if they are paying their employees, maybe they will need help in getting assistance from Federal or State agencies.
  • Check contracts for what’s referred to as a “force majeure” clause.  This common clause in contracts may partially or fully excuse both parties from performance or payment when an extraordinary event beyond the control of the parties, like a strike, war, or in this case health emergency, or an “Act of God” (hurricane, flood, earthquake, etc.) prevents the contract from being fulfilled.
  • Check the contracts  for provisions regarding payment during suspension of services – you should pay for services already rendered but generally do not pay for services not rendered and you generally do not prepay for services.
  • Check what insurance is provided by and with your contractor (it may include business interruption insurance for them); what policy do they have and were you an additional insured.

As always, if you have any further questions, please do not hesitate to contact us.

Authored by: William S. Donio, Esq.

Cooper Levenson Attorney Camille McKnight named as Top 40 Under 40 Honoree

Cooper Levenson is pleased to announce that Camille L. McKnight has been named to the 2020 Atlantic City Weekly’s  Top 40 Under 40 list.

“We are very proud of Camille and her achievements,” said Kenneth J. Calemmo, Jr., Chief Operating Officer, “We are very glad to have her as part of the Cooper Levenson team.

Camille is an Education Law attorney with Cooper Levenson. The attorneys is this group guide New Jersey public school district officials through the widely varied aspects of education law that impact schools on a daily basis.

Camille serves on the Rutgers Law School Alumni Board of Trustees, has worked with the Rutgers Minority Students Program, and serves on the Atlantic County Bar Association’s Young Lawyer Division Board. Her community services efforts through these groups includes mentoring law students, hosting community events for children in Camden, pairing up with the Community FoodBank of New Jersey and Let Us Eat – Please, Inc. to pack boxes for a summer feeding program, and hosting holiday parties for children in disadvantaged neighborhoods. Camille has volunteered as a mentor for Big Brothers/Big Sisters.

Camille graduated from Syracuse University and Rutgers University School of Law – Camden.