Update on the State Board of Education’s work regarding Operating Standards – Educational Service Personnel

Special Report: Update on the State Board of Education’s work regarding Operating Standards – Educational Service Personnel

The State Board of Education’s Operating Standards Committee, chaired by Ron Rudduck, approved Rules 3301-35-01 through 10, also known as Operating Standards, at their meeting on November 10, 2014. (Ohio Administrative Code Chapter 3301-35 Standards for School Districts and Schools Kindergarten through Twelfth Grade)

Tim Katz, executive director of the Ohio Alliance for Arts Education (OAAE), was one of several individuals who attended the committee meeting and public participation on non-agenda items on November 11, 2014. The OAAE requested that Rule 3301-35-05 (A)(3) (also known as the 5 of 8 rule) and Rule 3301-35-01 (B)(13) Definitions, be changed, and that the original language regarding the employment of Educational Service Personnel be restored, including the original definition for Educational Service Personnel.

The State Board of Education is expected to consider a Resolution of Intent to Adopt the revised Operating Standards in December 2014 and a Resolution to Adopt Operating Standards in late winter or early spring in 2015.

As a result of the outpouring of support for the 5 of 8 rule last week, some members of the State Board are interested in finding a way to change the proposed rule to address the concerns expressed by constituents.

The OAAE will continue to work with our members, stakeholders, members of the State Board, and lawmakers on Rules 3301-35-05 and 01 to find the best way to achieve a high quality education that includes the arts for all students, and creates the best conditions for learning in our schools.

A more detailed description of the State Board of Education’s Operating Standards Committee meeting and public participation meeting follows:


•Update on Operating Standards

The Operating Standards Committee, chaired by Ron Rudduck, met on November 10, 2014 and approved a revised version of Ohio Administrative Code Chapter 3301-35 Standards for School Districts and Schools Kindergarten through Twelfth Grade (referred to as Operating Standards) by a vote of 4 to 3 after much discussion and debate.

The revised Operating Standards include Rules 3301-35-01 through -10, and -15. These rules apply to traditional public schools, chartered nonpublic schools, and nonpublic nonchartered schools. The rules do not apply to community schools.

The State Board of Education is authorized under §3301.07 of the Ohio Revised Code (ORC) to “formulate and prescribe minimum standards” or rules to “…assure that all students are provided a general education of high quality.” The first operating standards were approved in 1983 and were known as Minimum Standards for Elementary and Secondary Schools. The standards were revised in 2000, 2006, and July 2010 in accordance with the law, which requires Ohio Administrative Code rules to be revised every five years.

The State Board’s Operating Standards Committee, chaired by Ron Rudduck, has been working since October 2013 to revise the standards to increase flexibility and local control for school districts, and update and streamline the standards. In addition to Chairman Rudduck, the committee includes Vice Chair Sarah Fowler, Board President Debe Terhar, Mike Collins, Stephanie Dodd, Tess Elshoff, Brad Lamb, and Kathleen McGervey.

During the November committee meeting members reviewed their work and discussed the next steps of the process. The State Board is scheduled to consider an Intent to Adopt Resolution in December 2014. The Joint Commission on Agency Rule Review (JCARR) and the Common Sense Initiative Review Committee will then review and approve the new rules. The rules will then return to the State Board in late winter/early spring, possibly March, when members will consider a Resolution to Adopt.

The committee also amended Operating Standards Rule 3301-35-03 Blended Learning, to clarify the teacher/student ratio. The amendment states that “A school that implements blended learning cannot be required to have more than one teacher for every 125 students.”

Most of the committee meeting, however, focused on a discussion of changes to Rule 3301-35-05 (A)(3) Educational Service Personnel, referred to as the “5 of 8 rule”, because school districts are required under the current rule to employ five out of eight full time equivalent educational service personnel for every 1000 students. The current categories of educational service personnel include nurses, counselors, social workers, library media specialists, and elementary art, music, and physical education teachers.

Last week members of the State Board of Education started to receive requests from a variety of constituents across the state and nation to slow down the process and assess the consequences for changing the rule. The Ohio Alliance for Arts Education, for example, sent all State Board members a letter requesting changes in two rules, 3301-35-05(A)(3) Faculty and Staff Focus and 3301-35-01 (B)(13) Definitions, on October 21, 2014 and on November 6, 2014.

In April 2014 the committee eliminated the 5 of 8 provision in Rule 3301-35-05 (A), but the committee retained language in rule defining educational service personnel. Then on October 23, 2014 the committee added more categories of educational service personnel under Definitions, Rule 3301-35-01 (B)(13).

Committee members Kathleen McGervey, Stephanie Dodd, and Sarah Fowler, along with other State Board members who attended the committee meeting, including Ann Jacobs, Debbie Cain, and Mary Rose Oakar, requested that the committee not take action on the proposed standards and take more time to deliberate on the consequences of the proposed change.

Sarah Fowler asked if the revised provision provided both local control and protected educational service personnel?

Kathleen McGervey said that she has never received so many comments in opposition to a rule from so many different constituents, including parents, educators, students, community members, and her friends. There is a real concern that if the requirement to employ educational service personnel is not mandated, then tight budgets, and other pressures, such as the increased cost for implementing the Common Core State Standards and PARCC tests, would lead to fewer educational service personnel in schools, which would harm students who need these services and educational programs.

Supporting the rule change were Ron Rudduck, President Debe Terhar, Tess Elshoff, Cathye Flory, Brad Lamb, Dr. Mark Smith, C. Todd Jones, and Vice President Tom Gunlock. They described this rule as a way to reduce mandates and provide school districts with more flexibility and local control about employment decisions. They also said that the rule was obsolete, because the law that it once applied to had been repealed years ago, and the language was written back in the 1980s. The concern about school districts eliminating these ESP because of tight budgets led Mr. Gunlock to suggest that boards of education would make the best decisions for their students, and if the public was not happy with those decisions then they could use the ballot box to elect other board members. In response to that suggestion, Mary Rose Oakar reminded the committee that the Cleveland Metropolitan School District doesn’t have an elected board of education.

Presentation on Operating Standards

President Terhar re-arranged the State Board’s meeting schedule on November 11, 2014 and delayed public participation on non agenda items for about an hour while the State Board received a presentation about the revised Operating Standards. Disappointed members of the audience, who had traveled from all over the state to attend the hearing, expressed their dismay with the agenda change, and at least two Board members requested that the original agenda be followed. President Terhar responded by saying that as Board president she has the authority to change the agenda, and did so to provide the audience with information about the revised Operating Standards before public participation. President Terhar also told an audience member, who said that she might not be able to stay for the hearing, that she was welcome to leave, causing Board members A.J. Wagner, Debbie Cain, Ann Jacobs, and Stephanie Dodd to get up and leave the room. They later returned to listen to the public participation on the rule.

A presentation to the Board about the revised Operating Standards was led by Ron Rudduck, Sarah Fowler, and Debe Terhar.

Ron Rudduck, chairmen of the Operating Standards Committee, reviewed the revision process for the Board, which included information about stakeholder feedback, involvement, and the guiding principles to increase flexibility for school district, eliminate unnecessary requirements, and streamline the standards by removing requirements that duplicate or reference the Revised Code.

Once approved by the State Board, the ODE will post the Operating Standards on a new web site, which will allow visitors to search by rule number, topics, sub-topics, and provide links to the Ohio Revised Code, related Ohio Administrative Code rules, and operational guidance, which includes best practices, resources, and research.

Sarah Fowler presented an overview about the changes in Operating Standards.

Summary of Changes

-Rule 3301-35-01 Definitions: The committee added definitions for Blended Learning, Digital Learning, and removed some language for Educational Options.

The committee also expanded the definition of Educational Service Personnel to include, in addition to school nurse, social worker, library media specialist, counselor, elementary art, music, and physical education teachers, the following: title 1 coordinator, ESL specialist, school resource officer, director of athletics, EMIS – data coordinator, technology coordinator, transportation supervisor, interpreter, audiologist, adapted PE, exceptional children program director, ECP pre-school director, reading specialist, school food service director, school nutritionist, or facilities administration.

-Rule 3301-35-02 Governance, Leadership, Organization, Administration, and Supervision and Rule 3301-35-03 Strategic Planning: The committee combined these rules and added a provision from Rule 3301-35-06, and renamed it Governance, Leadership, and Strategic Planning.

The proposed rule removes language that describes the elements of a leadership system, including student centered learning environments and a commitment to effective teaching and learning; the responsibilities of the board of education, superintendent, treasurer, and administrators to stakeholders; and details about strategic planning. These “best practices” will, however, be included on the ODE’s website as additional information, but will not have the weight of law, as they do now.

Rule 3301-35-02 also includes a part of Rule -06, regarding student health and safety policies. The proposed part (C) requires that boards of education adopt policies and procedures regarding student health and safety that comply with applicable local, Ohio, and federal laws for health, fire, and safety, and include vision and hearing screenings, referrals, follow-up and posting of emergency procedures and telephone numbers in classrooms.

-Rule 3301-35-03 Blended Learning. This is a new rule that defines and sets expectations for districts with blended learning programs.

-Rule 3301-35-04 Student and Other Stakeholder Focus: This is an important rule for advocates for arts education to understand and use, because it specifies what should be included in courses of study and requires that students have opportunities to learn course of study objectives.

The committee removed references to the “prescribed curriculum” and the “requirements for graduation”, which are already in law. The “prescribed curriculum” (§3301.07 and 3313.60 ORC), requires traditional public schools to provide for the study of the fine arts including music, and the graduation requirements specify that most students in traditional public schools need to complete a semester or the equivalent in the arts in any grades 7-12 (§3313.603 (K) ORC) in order to earn a diploma. The OAAE had requested that this language be retained in the rule.

The committee retained language that requires school districts to provide for the study of personal safety and assault prevention, foreign languages, technology, family and consumer sciences, and business education, as these are requirements prescribed by the State Board of Education, and are not in law.

The committee retained important language about the components of the courses of study, including the requirement that courses of study be adopted for each subject taught; include performance objectives; include scope and sequence; include multiple and appropriate assessments; and be reviewed and updated as needed.

The committee also retained the requirement to report student progress, and procedures for student admission, placement, withdrawal, awarding credit, promotion, and retention, and the statement, “(C) The school district or school shall provide every student with opportunities to acquire the knowledge and skills required to meet local course of study objectives.”

-Rule 3301-35-05 Faculty and Staff Focus: This rule includes information about the assignment of teachers and principals, and requires that credentialed and classified staff be recruited, employed, assigned, evaluated, and provided professional development. This rule also includes references to requirements for criminal background checks; teacher/student ratios; requirements for employment of educational service personnel; and school and school district professional environment.

The committee removed any reference to the Ohio Revised Code and the ratios for educational service personnel. The language about educational service personnel was removed and replaced with some of the language that the OAAE had recommended, but not all. The revised rule now states that,“(3) Educational service personnel are credentialed staff with the knowledge, skills and expertise to support the educational, instructional, health, mental health and college/career readiness needs of students.”

It is important to note that educational service personnel is included under part (A) of the rule, so the complete statement would read:

“Credentialed and classified staff shall be recruited, employed, assigned, evaluated and provided professional development in accordance to state and federal law. Educational service personnel are credentialed staff with the knowledge, skills and expertise to support the educational, instructional, health, mental health and college/career readiness needs of students.”

The committee retained the classroom ratio of teachers to students and requirement that every school be provided the services of a principal, but removed the requirement that a full time principal be assigned to every school with fifteen or more full time equivalent classroom teachers.

-Rule 3301-35-06 Educational Programs and Supports: This rule describes the learning and instructional environment, including the length of the school day (3301-35-06(B)); the requirements for educational options; educational support services; innovative pilot programs, waivers, and exemptions; services that identify student health and safety concerns and opportunities for access to appropriate related resources; and stakeholder partnerships. Schools are allowed to apply for exemptions to this rule through several sections of the Ohio Revised Code.

The committee retained language about educational options and the requirement that students be provided sufficient time and opportunity to achieve learning objectives (very important language). In addition to preparing students for the required state assessments, the OAAE requested that the words “local” and “approved” assessments be added. The statement now reads,

“(A) Educational programs and experiences shall be designed and implemented to provide a general education of high quality for all students. Students shall be provided sufficient time and opportunity to achieve local school district performance requirements and objectives measured by local, approved, and required state achievement assessments. Instruction shall be focused on the personalized and individualized needs of each student and include intervention that is designed to meet student needs.”

The committee eliminated language about the school schedule and the length of the school day, since that language is already in law.

The committee also moved to the website language regarding Educational Support Services. This language included requirements that students have access to library media and information technology programs.

Some provisions regarding positive behavior intervention, student attendance strategies, student conduct code, and financial management strategies, are moved to other rules or places in the rule, and some parts of other rules, regarding stakeholder partnerships and district contracts for academic remediation and intervention, are added to this rule.

The committee added parts of 3301-35-09 School district contracts for academic remediation and intervention, to this rule and provisions about health and safety to Rule 3301-35-03.

-Rule 3301-35-07 Data Driven Improvement: Rules 3301-35-07 Using Data to Improve Performance Results and Rule 3301-35-11 (A-D) Procedures for Evaluation and Intervention were combined into one rule.

Rule 3301-35-07 requires school districts and schools to collect and use data to analyze the effectiveness of their operations and support services. The committee retained language about data collection and how it is used. Districts will use data to compare current performance to past performances, compare current performance to the performance of similar districts, and use data to promote innovation, improve instruction and learning, and improve results.

Rule 3301-35-11 describes the evaluation and site visit procedures for districts or schools; the comprehensive self-evaluation of the educational programs and organizational effectiveness; failure to comply with standards; revoking a school/district’s charter; investigating allegation; and granting exemptions.

-Rule 3301-35-08 Non Chartered Non Tax Supported Schools: The committee aligned this rule to changes in law, 3313.48 ORC, regarding the length of the school year and day, which is now expressed in hours. The draft rule states that -08 schools shall be open for instruction for not less than 450 hours for students in kindergarten; 910 hours for students in grades 1-6; and 1001 hours for students in grades 7-12.

-Rule 3301-35-09 Chartered Non Public Schools. The committee moved most of Rule -09 to Rule -03 about Blended Learning, and as a result renumbered this rule, which now includes the rules for chartered non public schools, which were in Rule 3301-35-12. The committee aligned this rule to changes in law, 3313.48 ORC, regarding the length of the school year and day, which is now expressed in hours.

-Rule 3301-35-10 Procedures for Beginning a New School and for Changing Location or Ownership of a Schools. This rule included a provision about site-based management, which has been removed from the rule.

Language from Rules 3301-35-11, 12, 13, and 14 have been moved to other rules or eliminated.

-3301-35-15 Standards for the Implementation of Positive Behavior Intervention Supports and the Use of Restraint and Seclusion. This rule was recently added to Operating Standards and was not reviewed by the committee. It will not be renumbered until the rules are revised again in five years.

Public Participation on Non Agenda Items

Seventeen individuals addressed the State Board of Education on November 11, 2014 during public participation, which lasted almost three hours. All but one of the presenters addressed the Board about the 5 of 8 rule, and, of those participants, only one, Tom Ash, representing the Buckeye Association of School Administrators, the Ohio School Boards Association, and the Ohio Association of State Business Officials, opposed changes in the revised 5 of 8 rule.

Participants included parents, teachers, a college student, members of boards of education, and arts education advocates, including Mimi Brodsky Chenfeld. There were also a number of organizational representatives who testified including:

-Tom Ash, Buckeye Association of School Administrators, Damon Asbury, Ohio School Boards Association, and Barbara Shaner, the Ohio Association of School Business Officials
-Sara Williams, president of the Ohio School Counselors Association
-Dr. Cindy Zellefrow, vice president of the Ohio Association of School Nurses
-Danielle Smith, executive director of the Ohio chapter of the National Association of School Social Workers
-Tim Katz, executive director of the Ohio Alliance for Arts Education
-Randy Robart, president of the Ohio Art Education Association
-Scott DiMauro, vice president of the Ohio Education Association
-Dr. Steve Mitchell, past president of the Ohio Association of Health, Physical Education, Recreation, and Dance,
-Molly Shack, Ohio Student Association

Several themes were expressed during the testimony.

Tom Ash from the Buckeye Association of School Administrators, along with Damon Asbury, Ohio School Boards Association, and Barbara Shaner, the Ohio Association of School Business Officials, were the only witnesses who testified in support of the proposed 5 of 8 rule.

Speaking for the group, Tom Ash said that the rule enhances local control and provides school district officials with more flexibility to make decisions in the best interests of their school. Many school districts are already contracting with a variety of organizations to provide services to students through community learning centers and other programs. They said that they support educational service personnel, and understand the concern about the possible loss of these positions without the mandate, but the rule has not been enforced since FY2009, and retaining the current language, which is obsolete, would still not guarantee employment for all of the educational service personnel. Right now the rule is an unfunded mandate.

Board members President Terhar, Vice President Gunlock, C. Todd Jones, Ron Rudduck, Tess Eshoff, Dr. Mark Smith, and Brad Lamb also expressed their support for this rule, which they believe provides more local control and greater flexibility for school districts.

Board member Tess Elshoff explained that her school district, which has less than 1000 students, has struggled to comply with this rule, because it doesn’t need five full time equivalent educational service personnel, and would prefer to employ some part-time educators, but cannot and still comply with the rule.

On the other side of the argument, most of the presenters expressed the opinion that the State Board should assess the consequences for removing the ratios for the educational service personnel before enacting the new rule.

Dr. Cindy Zellefrow vice president of the Ohio Association of School Nurses, said that her organization just became aware of the rule change, and requested that the State Board slow down the process and engage more experts to determine the impact of the rule on students and schools.

One presenter said that, “The cake is not baked. Take it back and do it again.”

Several Board members, including Stephanie Dodd, Mary Rose Oakar, and Sarah Fowler, requested information about the number of counselors, nurses, and social workers currently working in the schools before making a decision about eliminating this rule.

The issue of equity was also raised by some presenters. There is the concern that children from low wealth and rural communities are most likely to be deprived of a comprehensive education program with services, if school districts are not mandated to employ educational service personnel according to the ratios.

Mimi Brodsky Chenfeld, an arts educator and writer from Columbus, said that the private schools will have the complete curriculum. Eliminating the 5 of 8 will just widen the gap between the wealthier and poorer communities. Schools should have flexibility, but still should meet the needs of all students, and schools can’t meet the standard for a quality education without the arts.

Scott DiMaura, vice president of the Ohio Education Association, said that his members believe that eliminating the 5 of 8 rule will “further reduce the educational opportunities available to students in Ohio”. Maintaining the Rule demonstrates that “the State Board of Education is committed to equal educational opportunity for all Ohio students.”

Randy Robart, President of the Ohio Art Education Association told the Board how the arts programs that he had in school led to his careers in the arts in business and now as a teacher. His career decisions were a direct result of having access to arts education programs in school.

Several presenters responded to the explanation that the proposed 5 of 8 rule provides school districts more local control to meet the needs of their school, students, and community, by encouraging the State Board of Education to provide more leadership and guidance regarding the components of a high quality education.

Tim Katz, representing the Ohio Alliance for Arts Education, reminded the Board that the purpose of Operating Standards is “to assure that all students are provided a general education of high quality,” and to create “the best learning conditions for meeting the personalized and individualized needs of each student.”

David Becker, a school board member from Crestwood Local Schools, said that the State Board of Education should be providing a framework for what’s important for local boards of education to meet. He told the Board that in the interest of promoting local control, the Board has given up its responsibility to prioritize what is important.

Molly Shack from the Ohio Student Association asked the State Board to provide leadership and take their role more seriously in this moment of crisis in education.

Board member Ann Jacobs agreed and said that the Board was “abrogating” its responsibility. There must be a balance between local control and state requirements.

One of the other issues that came-up frequently during the testimony was the expanded list of educational service personnel, which now includes directors of transportation, food services, data, etc. More than half of the presenters mentioned that the expanded list should be removed, because many of the new positions do not fit the definition of educational service personnel as credentialed educators.

Sarah Williams, President of the Ohio School Counselors Association and Danielle Smith, the Executive Director of the National Association of State Social Workers Ohio Chapter, also said that the 5 of 8 rule is the only place in law or administrative code that refers to the employment of counselors and social workers in schools. These experts are usually members of a team of professionals that, along with nurses, provide specific services to help students and staff stay healthy, safe, and ready to learn.

Kevin Dengel, an orchestra teacher, asked the State Board to consider the unintended consequences for changing the 5 of 8 Rule. He said that the change in the Rule would have a negative impact on Ohio, because it invites school districts to reduce the number of licensed teachers in the arts and replace them with classroom teachers, who are not sufficiently qualified to teach the arts.

Board member Debbie Cain agreed, and said that she is concerned about adding more responsibilities to classroom teachers. She said that the 5 of 8 rule is a baseline, a minimum, and actually schools need more school nurses, counselors, social workers, and art, music and physical education teachers.

There were also several Board members who consistently urged the State Board to find a compromise that would balance high quality educational programs and local control. Stephanie Dodd also recommended that the State Board consider asking the General Assembly to provide additional funds to support ESP in the next budget.

State Board Business Meeting

Following public participation the Board continued its business meeting and took action on the following resolutions:

#4 Approved a Resolution of Intent to Amend Rule 3301-27-01 of the Ohio Administrative Code entitled Qualifications to Direct, Supervise, or Coach a Pupil Activity Program.
#5 Approved a Resolution of Intent to Amend Rule 3301-51-20 of the Ohio Administrative Code entitled Admission, Transfer, Suspension, and Expulsion Standards for the Ohio State Schools for the Blind and the Deaf.
#7 Approved a Resolution of Intent to consider confirmation of the Columbus Grove Local School District’s determination of impractical transportation of certain students attending a private school.
#8 Approved a resolution to oppose the proposed transfer of school district territory from the River View Local School District, Coshocton County, to the North Fork Local School District, Licking County.
#23 Approved a Resolution to Amend Rules 3301-24-03 and 3301-24-18 of the Ohio Administrative Code entitled Teacher Education Programs and Resident Educator License.
#24 Approved a Resolution to Adopt the State Board of Education’s 2016-2017 Biennial Budget Request. Kathleen McGervey voted “yes” with reservations, but Debbie Cain voted “no”. The resolution was approved by a vote of 15 to 1.
#25 Approved an Emergency Resolution to ask for the General Assembly to Increase Funding for Transportation.

Stephanie Dodd sought an amendment to #25, increase state funds for transportation, to also ask that the General Assembly fund educational service personnel, but the amendment failed by a vote of 9 to 7.

Voting in favor of the amendment were Stephanie Dodd, Ann Jacobs, Mary Rose Oakar, A.J. Wagner, Debbie Cain, Tess Elshoff, and Cathye Flory.

Voting against the amendment were State Board members C. Todd Jones, Brad Lamb, Kathleen McGervey, Ron Rudduck, Dr. Mark Smith, Melanie Bolender, Sarah Fowler, Tom Gunlock, Debe Terhar.

Three members were not in attendance, Michael Collins, Rebecca-Vazquez-Skillings, and Joe Farmer.

Sarah Fowler said that for the record she voted “no” because the definition was too broad.

The original resolution to increase state support for transportation was approved by a vote of 16 to 0.

See http://education.ohio.gov/State-Board/State-Board-Meetings/State-Board-Meetings-for-2013-1

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About OAAE

Since our founding in 1974, by Dr. Dick Shoup and Jerry Tollifson, our mission has always been to ensure the arts are an integral part of the education of every Ohioan. Working at the local, state, and federal levels through the efforts of a highly qualified and elected Board of Directors, our members, and a professional staff we have four primary areas of focus: building collaborations, professional development, advocacy, and capacity building. The OAAE is funded in part for its day-to-day operation by the Ohio Arts Council. This support makes it possible for the OAAE to operate its office in Columbus and to work statewide to ensure the arts are an integral part of the education of every Ohioan. Support for arts education projects comes from the Ohio Arts Council, Ohio Music Education Association, Ohio Art Education Association, Ohio Educational Theatre Association, VSA Ohio, and OhioDance. The Community Arts Education programs of Central Ohio are financially assisted by the Franklin County Board of Commissioners and the Greater Columbus Arts Council. We gratefully acknowledge and appreciate the financial support received from each of these outstanding agencies and organizations.
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