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  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.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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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

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.

NJDOL Flier on COVID-19 & Unemployment Benefits

As you may have heard during Governor Murphy’s 2:00 p.m. press conference on March 17, 2020, the State is requesting that all businesses continue to pay their employees. While it is unclear whether it will apply to schools, the Governor explained that there is Federal and state proposed legislation that will provide small and mid-sized businesses with 100 percent compensation for providing two weeks of sick leave to employees, along with tax credits for providing up to three months of Paid Family Leave.

Above and here is a helpful chart regarding different types of leave as they relate to COVID-19 from the New Jersey Department of Labor website.

We encourage you to continue to follow our previous guidance issued earlier today, but will keep you updated as the legislation progresses.

Authored by: Kasi M. Gifford, Esq. and Elizabeth C. White, Esq.

Cooper Levenson Guidance for Payment of Non-Certified or Non-Instructional Staff During State Shutdown

To Our School Board Community:

We have been fielding several questions regarding payment of non-certified or non-instructional staff employees in the public school system during a School District closure to students. This guidance is subject to any laws passed on an emergent basis during this unprecedented time. We recommend your School District consider the following:

  • Follow your plan submitted to the New Jersey Department of Education.
  • Always have the health, safety, and welfare of your students and staff at the forefront of any decision making.
  • Check Collective Bargaining Agreements; while they are not likely to address this type of situation, they may provide guidance, especially if the district has dealt with other emergent situations; be mindful of past practice.
  • Generally, a public entity typically does not pay a salary to a person who is not performing work on behalf of the District.
  • This issue is currently on appeal before the New Jersey Supreme Court, regarding the payment of a salary to employees working fulltime for their associations.
  • However, Boards ARE statutorily authorized to provide “the payment of salary in cases of absence not constituting sick leave…” Therefore a Board can most likely provide extended paid leave to employees.
  • You may consider negotiating payment terms with your local association, but the closing of schools is non-negotiable.
  • During the school shutdown, you should consider the following:
    1. Have employees who work from home provide some form of check-in for staff.
    2. Have designated times in which staff are expected to check e-mails and voicemails.
    3. Have staff continue to respond to parents/follow-up, and be available during the “school day.”
    4. Allow support staff to reach out to teachers they support in the classroom to support them in any way possible.
    5. Consider whether and to what extent employees such as custodians and maintenance workers continue to come into work to keep the buildings clean and the grounds well-kept, subject to restrictions on gatherings, or other closure orders.
  • If you provided extended paid leave to employees not performing job responsibilities:
    1. Notify employees that based upon the length of time the School District is closed, their paid status might change.
    2. The Board should authorize or ratify paid leave.

If you have any further questions about paying employees in the coming weeks, please do not hesitate to contact us.

Authored by: Elizabeth C. White, Esq.

Cooper Levenson’s Guidance for Holding Board Meetings During the State’s Shut Down of Schools

To Our School Board Community:

Given the current uncertainty surrounding COVID-19, we here in the Education Department at Cooper Levenson thought it appropriate to provide guidance regarding holding Board Meetings while your School District is closed. The below is subject to any additional Federal, State, or Locally issued rules or orders that may be issued in the coming days and weeks, including curfews and prohibitions on large gatherings.

The Division of Local Government Services gave the following direction regarding board meetings:

  • In accordance with N.J.S.A.10:4-6, et seq., (the “Open Public Meetings Act,” or “Act”), public meetings may be held in person or by means of communication equipment, N.J.S.A. 10:4-8(b), to include streaming services and other online meeting platforms. All meetings, including those held using communications equipment, must be noticed in a manner consistent with the requirements of the Act, unless the meeting is for emergent circumstances and held in a manner consistent with the requirements set forth at N.J.S.A.10:4-9(b). 
  • Local units should also provide guidance to the public for remotely accessing and providing comment at a meeting. 
  • Local units should still have an advertised meeting place, which, is connected to the meeting through communications equipment, unless  otherwise directed by state or local emergency management or health officials, consistent with Executive Order 103 (Murphy 3/9/2020). 
  • Local units are reminded that they are required to provide a means of public comment even if a meeting is held remotely.
  • Further, if a local unit currently records the audio or video of its meetings, we recommend that it continue to record a remote meeting.
For complete information – click HERE

Schools Need to “Ace” New Jersey’s New Employee Background Law

In a cautionary tale for all school districts in New Jersey, on August 21, 2018, a Federal court ruled a $600,000 settlement must be paid by that school district’s taxpayers and not its insurance carrier because the district failed to notify authorities and agreed not to tell potential future employers about a teacher’s resignation stemming from sex abuse allegations involving students. Jason Fennes, the former Montville teacher was subsequently sentenced to 14 years in prison after leaving the Montville School District after admitting to sexually assaulting 6 students in three different schools.

“Schools must provide a safe environment where children can learn,” noted Wil Donio, Esquire chairman of the Education Law Practice Group at Cooper Levenson, P.A. “What you know, but don’t say, can hurt you and others.”

On finding Montville School District’s insurance carrier Zurich American not responsible for paying this settlement,  U.S. District Court Judge Kevin McNulty ruled Zurich did not have a duty to defend the school district because it knew about “abusive acts” prior to the effective date of the policy and failed to disclose the same.  The underlying lawsuit filed by the student alleges the teacher engaged in “various acts of sexual molestation and/or child abuse against other students…and caused the student’s exposure to a known pedophile and child molester.”

The Montville suit was one of several in New Jersey which precipitated the passage of the “Pass the Trash” Law on June 1, 2018.  All New Jersey public, charter, and private schools, as well as contract service providers holding a contract with a school, must comply with stringent background requirements for all applicants for employment having contact with students.  This includes, but is not limited to, teachers, administrators, janitors, bus drivers, lunch staff, and aides.

Among other requirements, schools must obtain from applicants employment information including any prior school employment or jobs that involved regular contact with children for the past 20 years, a written authorization requesting release of information from prior employers, and a written statement certifying whether  the applicant has ever been the subject of a child abuse or sexual misconduct investigation by any employer, law enforcement agency, licensing agency or the Department of Children and Families.

Cooper Levenson can assist school districts and contractors comply with the “Pass the Trash” law as well as provide training seminars on a variety of  school issues for your employees. For more information, please contact Sean F. Dalton, Esquire at (609)344-3161.

RICE Notice change! Supreme Court reverses Appellate Division over-inclusive RICE notice decision

By Amy Houck Elco, Esq.  and  Yolanda N. Melville, Esq.

Recently, the New Jersey Supreme Court issued its decision in Kean Federation of Teachers v. Ada Morell (A-84-16) (078926). The Supreme Court overturned the Appellate Division’s decision requiring all employees to receive a RICE notice if their names appeared on a public body’s agenda. The Supreme Court opined that RICE notices must be given if an employee will be discussed in executive session and adverse action may be taken regarding his or her employment. The Court also opined that mandating public bodies to issue RICE notices and robustly discuss all personnel matters, as the Appellate Division intimated, would intrude on a public body’s prerogative as to how to conduct its meetings. The Open Public Meetings Act (“OPMA”) does not contain a requirement about the robustness of the discussion that must take place on a topic.

In addition, the OPMA requires public bodies to make their meeting minutes “promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12].” However, the OPMA but does not define the phrase, “promptly available.” The Court reasoned that a public entity must establish its meeting schedule to suit the managerial obligations of its public responsibilities while also acting responsibly concerning its obligation to make minutes “promptly available” to the public. The OPMA’s requirements apply to a diverse range of public entities, so no set amount of time for the release of minutes should be mandated. The OPMA’s legislative history recognizes that closed-session minutes may need to be shielded from the public for a longer period due to the sensitive nature of the material. However, reasonableness must remain the touchstone when assessing promptness. In this case, the five-month delay in releasing the Board’s executive session minutes was considered unreasonable.