In this issue: CBD oil now legal in Ohio • Can we do that? • New state auditor bulletin and Sunshine Laws • Are you correctly applying FMLA? • Board meeting agendas • Sample policies included with this issue
CBD oil now legal in Ohio
by Kyle E. Lathwell, policy consultant
On July 30, Gov. Mike DeWine signed Senate Bill (SB) 57 into law, decriminalizing hemp and hemp products and creating licensure programs for those wanting to cultivate or process hemp products. The bill included an emergency provision, making it effective immediately, which means it needs to be on the radar for school districts. This is particularly true for cannabidiol (CBD) oil, a hemp derivative. Districts may see a rise in students possessing or requesting the administration of CBD oil.
While Ohio did not alter its laws to align with federal regulations after the 2018 U.S. Farm Bill passed — which removed hemp from the definition of marijuana in the Controlled Substances Act — SB 57 brings the state in line with federal law. Many people associate products like CBD oil with marijuana, but SB 57 explicitly excludes hemp and hemp products from the definition of marijuana used to enforce laws governing controlled substances.
Hemp and marijuana both come from the cannabis plant, but hemp has a much lower concentration of delta-9 tetrahydrocannabinol (THC), the psychoactive part of cannabis. SB 57 defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.”
Hemp products are defined as any product of not more than 0.3% THC that is made with hemp and includes “cosmetics, personal care products, dietary supplements or food intended for animal or human consumption, cloth, cordage, fiber, fuel, paint, paper, particleboard and any other product containing one or more cannabinoids derived from hemp, including cannabidiol.”
CBD products are subject to the same laws and requirements as U.S. Food and Drug Administration (FDA)-regulated products that contain any other substance.
FDA has approved only one prescription medication containing CBD, Epidiolex (CBD) oral solution, for the treatment of seizures associated with two rare and severe forms of epilepsy. It is the first FDA-approved drug that contains a purified drug substance derived from marijuana. FDA has not approved any other CBD products, and there is limited information available about CBD, including its effects on the body, how it could interact with other drugs or foods and what would constitute a proper dose.
FDA has issued warnings to consumers about the inaccurate content of various CBD oil products, stating “many were found to not contain the levels of CBD they claimed to contain.” There also have been reports of CBD potentially containing contaminants, like pesticides. FDA’s position leaves CBD oil, and its appropriate uses, in a gray area.
Despite this, many believe CBD oil is a legitimate homeopathic alternative to traditional medications used for pain, anxiety and other medical concerns. As a result, districts may see an increase in requests to possess and/or administer CBD oil in schools.
Policy implications
What does this mean for school districts? First, keep in mind that possessing CBD oil that does not have a THC level exceeding 0.3% is not illegal under Ohio law, but the legal landscape at the federal level is less clear. It also is very difficult to accurately ascertain the level of THC in CBD oil. As such, if you have requests for administering CBD oil in your district, you should contact legal counsel for advice.
Further, while a board policy on the possession or administration of CBD oil is not required, if you are planning to develop a district-level policy or procedures related to this topic, we recommend working with legal counsel to ensure it is legally compliant and applied consistently.
If you happen to have an instance in which a student has a prescription for the FDA-approved medication, Epidiolex, the district should follow the directives of its administration of medication policy.
Policy JHCD, Administering Medicines to Students, and regulation JHCD-R-1, Administering Medicines to Students, would be applicable if a student has a prescription for Epidiolex. However, the policies do not require any updates as a result of SB 57.
Can we do that?
by Kenna S. Haycox, senior policy consultant
In this PDQ issue, we answer some questions districts periodically send us related to whether certain policies or policy changes are allowable.
Open enrollment
All boards of education must adopt two different types of open enrollment policies:
• Intradistrict — allows students to enroll in a school building in the same school district other than the one that the student is assigned by the superintendent (Ohio Revised Code (RC) 3313.97 and Ohio Administrative Code (OAC) 3301-48-01).
• Interdistrict — permits a student to enroll in a district other than the student’s home district (RC 3313.98 and OAC 3301-48-02). A district may choose to allow students from any district in the state, adjacent districts or not allow for open enrollment.
Adopted policies and procedures must include application procedures, including application and notification deadlines. The district also must establish capacity limits by grade level, school building and education program and ensure procedures for appropriate racial balance.
Open enrollment policies cannot include:
• academic, athletic, artistic or extracurricular ability requirements;
• English language proficiency requirements;
• discipline considerations, except that a board may deny students suspended or expelled for 10 or more consecutive days in the immediately preceding term or in the term for which admission is sought;
• restrictions based on disability, except that the board may require students receiving special education services to attend school where the services described in the student’s individualized education program are available.
A frequent area of concern is when districts use criteria other than that allowed by statute to determine which students to accept under open enrollment. Common issues include attendance rate criteria, student conduct criteria and establishing separate criteria for students already enrolled under open enrollment that may include student discipline criteria.
When establishing open enrollment application procedures and criteria for acceptance, you must be very careful not to use criteria not authorized by statute. If you want to add additional criteria other than those outlined above, this should be done in consultation with district legal counsel. Take some time to review your locally adopted open enrollment policies and procedures to determine if any of the frequent issues noted above are included in your procedures. If so, consider revising these procedures to better reflect the established statutory procedures.
Board members remotely participating in board meetings
A frequently asked question is whether a board member who is unable to attend a scheduled board meeting in person may participate in the meeting via electronic means, typically by conference call or videoconference.
RC 121.22(C) states: “A member of a public body shall be present in person at a meeting … to be considered present or to vote at the meeting and for purposes of determining whether a quorum is present at the meeting.” This means that even if a board allows its members to call into the board meeting or participate via electronic means, they will not be permitted to vote on anything that requires board action and will not be counted for quorum purposes.
The Ohio attorney general (OAG) discussed this topic in a 2009 opinion that dealt with the board’s ability to meet by teleconference (2009 OAG 034). In that opinion, OAG held that because all meetings of a public body are required to be “open to the public at all times,” a public body is prohibited from “conducting a meeting by teleconference or other means that prevent the public, or a majority of the members of the public body, from attending the meeting in person.” OAG also held that members of a public body were prohibited from attempting to circumvent the intent of the open meetings law by conducting a conference call and claiming it does not meet the definition of a “meeting” of the board because a majority of the members are not “present in person.”
So, what does this all mean? Taken together, the opinions and the law prohibit a board from conducting a board meeting in which all members participate via electronic means since that would prevent the public from attending the meeting. However, a board could allow an individual board member to participate via conference call or videoconference as long as there is a quorum present at the meeting. Such participation would be limited to listening to and participating in the board’s discussions. A board member who participates via electronic means may not be counted for quorum purposes nor may the board member vote.
Also, allowing a board member to participate via electronic means doesn’t negate the board’s responsibility to keep accurate minutes of the meeting. Although Ohio Revised Code doesn’t provide details about what should be contained in the board’s minutes, case law has held that minutes must be of sufficient specificity that an individual not present at the meeting could read them and understand and appreciate both the board’s official actions and the rationale behind them (White v. Clinton County Board of Commissioners (1996), 76 Ohio St.3d 416). To meet this requirement, the board should note on the record that the absent board member is participating via electronic means. Boards that rely on audio or video recordings as the board’s official minutes also will want to ensure these recordings capture the comments made by the member participating electronically.
Policy implications
A board that allows its members to participate via electronic means may consider including language in its board policy to reflect this choice. OSBA policy BD, School Board Meetings, includes permissive language that authorizes a board member’s participation in this manner and clarifies that board members who participate electronically may not vote at the meeting and will not be counted for purposes of determining whether a quorum is present. The policy remains unchanged from previous versions but is provided for informational purposes for districts wishing to consider this language.
Student discipline
Many legislative changes in the past few years relate to student discipline. Following are some areas in which districts may not have revised local policies based on updates released by OSBA on these topics or may not have updated documents, such as handbooks, to reflect changes adopted in policy:
• Extending suspensions into subsequent school years — Districts are prohibited from extending a suspension into the next school year if there are fewer than 10 days remaining in the current school year. The superintendent may instead require the student to complete community service or another alternative consequence determined appropriate. Note, this provision only applies to suspensions. The district still may choose to extend expulsions into the following school year.
• Exclusionary discipline related to student absences — Districts are prohibited from suspending or expelling a student solely due to the student being absent from school without legitimate excuse.
• Ability to make up assignments — Boards are required to adopt a policy establishing parameters for completing and grading missed assignments due to a student’s suspension. The policy must permit the completion of missed classroom assignments, and students must receive at least partial credit for completed assignments. The policy may permit grade reductions and must prohibit the receipt of a failing grade solely on account of the student’s suspension. Some districts may have language that says a student is not permitted to make up missed assignments due to a suspension, and this language no longer is permissible under state law.
No updates are necessary to OSBA policies based on the discipline issues addressed here. However, districts should review local policies, procedures, handbooks and student codes of conduct to determine if updates are necessary.
Public participation
Boards are not required to allow for a period of public participation or comment at board meetings. However, this is common practice for most districts around the state. While this public participation is a privilege, not a right, it is important for boards to understand what parameters can be established for such participation. Boards may establish appropriate time, place and manner restrictions. These restrictions must not be based on the content of speech or viewpoint expressed. Boards cannot prevent public participation on the basis of ideas, opinions or statements that will be included in proposed speech. More information on this topic is available. Districts should evaluate locally adopted policies and procedures related to public participation to determine if established restrictions are allowable.
OSBA policy BDDH, Public Participation at Board Meetings (Also KD), is included for informational purposes. If you choose to review and update this policy, make sure to consider your legal requirements on this topic and consult legal counsel when making significant changes to your public participation requirements.
Lice
One issue districts frequently manage is head lice. The question becomes whether a student with head lice may be restricted from attending school. OAC 3703-3-13(Q) requires that "a person with body lice shall be excluded from school or a childcare center until 24 hours after application of an effective pediculicide. A person with head lice shall be excluded from school or childcare center until after the first treatment with an effective pediculicide.”
This is consistent with the communicable disease chart provided by the Ohio Department of Health. However, some districts have drafted local policy establishing stricter guidelines for students with lice that extend a student’s exclusion from school. Districts should follow OAC requirements related to a student’s exclusion due to head lice. If your district has instituted a stricter policy, this should be reviewed by your district legal counsel for compliance. OSBA does not have a sample policy related to the management of head lice. Parameters for managing this and other conditions should be established at the district level by your school nurse or licensed health care professional in accordance with all statutory obligations.
OSBA welcomes your questions
Remember, we are here to meet your needs and available for questions on policies. Please reach out to us when you have questions so we can help you review and consider these policies. Contact your policy consultant with questions at (614) 540-4000 or (800) 589-OSBA. The author also can be reached at khaycox@ohioschoolboards.org and Policy Consultant Kyle E. Lathwell at kLathwell@ohioschoolboards.org.
New state auditor bulletin and Sunshine Laws
by Kyle E. Lathwell, policy consultant
On Nov. 18, the Ohio Auditor of State’s Office released Auditor of State Bulletin 2019-003, addressing Sunshine Laws and a new Star Rating System.
We are reviewing the bulletin and will release additional guidance about how it may impact policy in the February 2020 PDQ issue. If we determine districts need this information sooner, we will communicate through an eAlert prior to February. If you have questions, feel free to contact us.
Keep in mind, policy KBA, Public’s Right to Know, is required. Districts should review their policy manuals to make sure this policy is in place.
Are you correctly applying FMLA?
by Kenna S. Haycox, senior policy consultant
The Family and Medical Leave Act (FMLA) is designed to help employees balance their work and family life by allowing them to take leave for certain qualifying conditions. Though it has been used millions of times since its enactment, FMLA can be difficult to administer, especially if your district only has a few FMLA instances each year. Several recent U.S. Department of Labor (DOL) opinions are important to be aware of as you consider implementing FMLA.
Designation of leave as FMLA leave
Generally, FMLA is unpaid leave. However, FMLA permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or other paid leave for some or all of the FMLA leave period. When paid leave is used for an FMLA-covered reason, it is FMLA-protected. Districts should define whether the employee is required to use other leave concurrently. This option, however, can cause some confusion as to what FMLA-protected leave is and whether the leave is counting toward the employee’s FMLA leave entitlement.
Two important DOL opinions this year address designation of leave as FMLA leave. The first opinion discussed here is Opinion FMLA2019-1-A, which was issued in March. The opinion reviewed whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement. The background states that “some employers voluntarily permit employees to exhaust some or all available paid sick leave (or other) leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.” The opinion goes on to state this practice is unallowable under FMLA and that “an employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.” Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
The second DOL opinion addressing this area is FMLA2019-3-A, specifically opining on whether a collective bargaining agreement may allow delaying or designating paid leave as FMLA leave if the leave complies with the collective bargaining agreement and the employee prefers this delay in designation. DOL finds that even if the employee is substituting paid leave in accordance with provisions of the collective bargaining agreement, it still must be classified as FMLA leave if due to an FMLA-qualifying reason.
Use of intermittent leave
FMLA provides for the use of intermittent leave for qualifying reasons. DOL opinion FMLA 2019-2-A addresses whether an employee’s use of intermittent FMLA leave to attend a committee on special education (CSE) meeting to discuss the individualized education program (IEP) of the employee’s son or daughter is allowable. The children presented in this situation have qualifying serious health conditions under FMLA, and the employee previously was permitted to use intermittent leave for taking the children to medical appointments. However, the request to take FMLA leave intermittently to attend CSE/IEP meetings was denied.
DOL finds that using intermittent leave for purposes of attendance at these meetings is in fact a qualifying use of FMLA intermittent leave provisions. The opinion provides several references to other opinions and findings addressing intermittent use of leave and emphasizes that FMLA provides leave “to care for a family member … with a serious health condition” and that this includes “to make arrangements for changes in care.” Based on these FMLA provisions and the situation presented in the opinion, the use of intermittent FMLA leave should have been approved for attendance at these meetings.
While this opinion is tied specifically to IEP meetings, it is an important reminder about understanding the requirements for intermittent leave and determining the underlying need for the leave to establish if it is an FMLA-protected leave based on the facts of the situation.
Practical and policy considerations
So, what does this mean for you? Districts with language conflicting with these opinions in collective bargaining agreements or polices should consult legal counsel to determine whether revisions are necessary. Districts also should review their practices to see if their implementation of FMLA policies is consistent with these opinions and law. The district official responsible for managing FMLA should ensure proper notices are made to employees when their leave must be designated as FMLA leave and ensure all mandatory procedures are followed. Districts may also consider providing information to other individuals who may approve leave for their directly supervised employees on how the district determines whether the leave is FMLA-protected leave and what the process is.
OSBA policies on this topic do not need to be updated to reflect any of these changes. However, current GBR, Family and Medical Leave, and GBR-R, Family and Medical Leave, are included for informational purposes. If you determine your version of these policies needs updated to reflect OSBA’s current policy language, the options within the regulation must be compared to any requirements within your negotiated agreement as well as to what is currently being implemented. If making any significant changes related to FMLA administration (for example, what 12-month period is used for determining leave), districts must be aware of notice requirements related to this. A district wishing to change to another method for determining the 12-month period is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.
Board meeting agendas
by Kyle E. Lathwell, policy consultant
Basic principles and procedures guide all decision-making processes in the context of public meetings. These are commonly referred to as parliamentary procedures. They are the generally accepted rules of order and practices commonly used by school boards to maintain order and ensure fairness as they govern.
Robert’s Rules of Order is the most commonly used manual of parliamentary procedure for Ohio school districts. Its basic principles are:
• someone has to facilitate or direct the discussion and keep order;
• all members of the group have the right to bring up ideas, discuss them and come to a conclusion;
• members should come to an agreement about what to do;
• members should understand that the majority rules, but the rights of the minority always are protected by assuring the right to speak and vote.
Even though most districts use Robert’s Rules of Order as a guiding set of principles and procedures, Ohio law does not require it. In fact, the law at times requires certain procedures to be followed even when Robert’s Rules of Order allow for another process.
Agendas
Ohio law does not require boards of education to use an agenda, nor does the law describe how agendas are to be prepared or amended. However, most would agree that a thoughtfully planned agenda is aligned with well-prepared board members and orderly and efficient board meetings. The meeting agenda provides structure and a map of where the meeting is going. That is helpful to members and the public alike. As such, most boards use agendas and maintain board policies that set forth how those agendas are created and distributed.
Under Robert’s Rules of Order, boards typically adopt the agenda at the beginning of the meeting by majority vote, but that does not set the agenda “in stone.” Even after the agenda is adopted, it is possible to amend or change it. However, once adopted, only a two-thirds vote can change the agenda.
A consent agenda allows members to vote on a group of items at one time without discussion or debate. It is a useful way to deal with routine, procedural and noncontroversial business. For instance, boards may approve minutes, pay bills or make appointments to committees. Prior to using a consent agenda, boards should first adopt a policy allowing for its use.
Consent agendas work best when its items are known in advance, enabling board members to prepare appropriately. At the beginning of the meeting, the board president should ask members if there are any items they want to remove from the consent agenda for further discussion. If a member requests to remove an item, it must be removed. This does not require a motion, second or vote. An item can be removed for any reason. The remainder of the consent agenda items will then be addressed and adopted all at once.
Policy Implications
Policies BDDB, Agenda Format, and BDDC, Agenda Preparation and Dissemination, both address issues related to the agenda. After review, we determined both policies required updates. The policies now better reflect the procedures discussed above and outlined in Robert’s Rules of Order. The updated policies are included with this PDQ issue.
Sample policies included with this issue
Note: Policies and/or regulations marked with * are required. Check to confirm that you have these policies and/or regulations.
Revised policies/regulations (add new language shown in bold type and delete language in strike-through type.)
Revised
BDDC, Agenda Preparation and Dissemination
Other (included for informational purposes and do not require adoption)
*BDDH, Public Participation at Board Meetings (Also KD)
*GBR, Family and Medical Leave
*GBR-R, Family and Medical Leave