Lame-Duck Legislation: House Bill 404 Signed

The Governor recently signed House Bill 404 (“HB 404”), which contains pivotal provisions that may provide relief to school districts dealing with the pandemic. Some of the most important changes in HB 404, which was signed on November 23, 2020, include the following:

1. Extension on conducting virtual meetings: Boards of education will be able to hold virtual meetings until July 1, 2021. However, boards need to review their bylaws, policies, and resolutions to determine whether they need to be updated or modified to reflect authority for holding virtual meetings past the original December 1, 2020 deadline. For more information on this change, see our blog post here..

2. Extending changes relating to evaluations: HB 404 extends and expands upon several provisions related to evaluations enacted in House Bill 197:

  • The prohibition on using value-added data to measure student learning for purposes of a teacher’s evaluation is extended to the 2021-2022 school year, and HB 404 explicitly applies this to school counselors. It also extends a separate authorization for a board to conduct a principal’s evaluation without a student growth measure to the 2020-2021 school year.
  • For teachers on two-year or three-year evaluation cycles, the board may continue to evaluate those teachers in 2020-2021 even without a student growth measure. Any teacher who does not have a student growth measure as part of their evaluation must remain at the same point in the evaluation cycle, and must retain the same evaluation rating for the 2021-2022 year as for the 2019-2020 school year (in addition to the 2020-2021 school year under current law).
  • For the 2020-2021 school year, if the Board has not completed an evaluation required by Chapter 3319, the board may elect not to conduct the evaluation if it determines “that it would be impossible or impracticable to do so.” However, if the board elects not to evaluate the employee, then the employee is considered not to have had evaluation procedures complied with for purposes of teacher non-renewal procedures under R.C. 3319.11.  Similar to HB 197, HB 404 also permits the Board to “collaborate” with a union to determine whether to complete evaluations for the 2020-2021 school year, and it does not preclude a school district from using an evaluation completed prior to the effective date of HB 404 in employment decisions.  School districts should consult with board legal counsel for appropriate waiver resolution language and to determine whether it is appropriate to enter a MOU regarding evaluations.

3. Extending licensure deadlines: Any license issued under the Ohio Revised Code that would expire between March 9, 2020 and April 1, 2021 will be extended until July 1, 2021.  This extends a previous December 1, 2020 deadline for taking action to renew such licenses.  Please note that, similar to HB 197, HB 404 still allows for disciplinary actions during this time.

4. Modifying College Credit Plus: HB 404 expands the Chancellor of Higher Education’s authority to extend, waive, or modify the requirements of the College Credit Plus program to the 2020-2021 and 2021-2022 school years if the Chancellor determines it is “necessary in response to COVID-19.”

5. Administering Diagnostic Assessments for 2020-2021: School districts may administer certain state assessments (diagnostic assessments, third-grade ELA, and kindergarten readiness assessments) if they elect to do so. However, districts may not be penalized for failing to administer these state assessments in the fall of the 2020-2021 school year to a student if any of the following applies to that student:

  • The student is being quarantined;
  • The student or a member of the student’s family is medically compromised and the student cannot attend school or another physical location outside the home for testing;
  • The student resides in a geographic area subject to a Governor, Ohio Department of Health, or local health department order requiring all persons to remain in their residences; or,
  • The student is receiving instruction primarily through a remote learning model up through the deadline for the assessments, and the assessments cannot be administered remotely.

6. Conducting Kindergarten and First-Grade Health Screenings: School districts cannot be penalized if they fail to conduct a health screening of a kindergarten or first-grade student prior to November 1, 2020 if the student is a “qualifying student” (i.e., if the student met any of the conditions listed above in 5(a)-(d) prior to November 1, 2020). Such schools must conduct those health screenings for students who did not receive them for the 2020-2021 school year prior to November 23, 2020, but the school “may forego screenings until they can be conducted safely for a particular student” for a qualifying student. However, if a student’s parent, guardian, or custodian requests a such screening, the school must conduct that screening and cannot deny such a request made for a qualifying student.

7. Extension related to Student Meals: HB 404 extends HB 197’s deadline regarding the Summer Food Service Program from December 1, 2020 to July 1, 2021. This means that the law will continue to exempt school districts temporarily from registering as a food processing establishment and paying an annual fee of $50 to $300. School districts can continue providing food to those students who are home without being subject to inspection as a food processing establishment. A school district will be exempt if it has a food service operation license and is transporting food from the establishment for purposes of the Seamless Summer Option Program or the Summer Food Service Program administered by the U.S.D.A.

At of the time of this post, other lame-duck legislation impacting Ohio’s schools is awaiting the Governor’s signature (e.g., Senate Bill 89 dealing with EdChoice). If the Governor signs such legislation, we will provide a separate update explaining the impact on Ohio’s schools.

Samantha Vajskop may be reached at