The State Board of Education deferred action Tuesday on a proposal to convert emergency pandemic child care regulations into permanent rule after some members expressed concerns and a key lawmaker also urged delay. The board also voted on a resolution to urge return to in-person learning.

With child care licensure rules spanning both the Ohio Department of Job and Family Services (ODJFS) and Ohio Department of Education (ODE), the law requires ODE’s rules to meet or exceed the requirements adopted by ODJFS. The board acted multiple times last year to adopt emergency pandemic rules to align with ODJFS rules under authority of executive orders from Gov. Mike DeWine.

As explained by ODE’s chief counsel, Immy Singh, and director of early learning and school readiness, Wendy Grove, ODJFS recently filed to make its emergency rules permanent, prompting ODE staff to seek to follow suit. Grove noted the rules are specific to the COVID-19 pandemic and would not apply to other pandemics or communicable diseases.

Board member Diana Fessler said she was “very much opposed” to putting into permanent rule the emergency regulations, which include COVID mitigation protocols including mask use, symptom checks and handwashing, among others. Board members Mike Toal and Martha Manchester also expressed concern about making emergency rules permanent.

The emergency rules are set to expire in mid-April, and Singh explained that even if the board had voted to file the proposed permanent rules Tuesday, there still would have been a gap between that mid-April expiration and the projected effective date of the permanent rules in May, because of the time it takes for review by the Common Sense Initiative (CSI) and Joint Committee on Agency Rule Review (JCARR).

Singh said the governor cannot continually re-issue the same emergency rules via executive order.

Grove said that gap might leave ODE temporarily unable to enforce COVID mitigation rules. She noted that the rules also address the issuance of temporary pandemic child care center licenses and the ability for programs to access public child care funding for children who are attending school remotely.

Singh told Manchester that permanent rules generally come up from review every five years, but the board could decide to revisit them sooner.

Sen. Andrew Brenner (R-Powell), chairman of the Senate Education Committee and ex-officio board member, urged the board to defer the vote, particularly because the ODJFS rules they seek to mirror are still pending before JCARR. “I would strongly recommend you table this action at least for a month,” he said.

“Make sure everything is in order, work with us in the General Assembly and then come back next month and vote on this if you need to,” he said.

Fessler suggested the board follow Brenner’s advice, given what his role as education chair says about his relationship with legislative leadership and his influence over the ODE budget.

The resolution proposing the permanent rules was deferred to the March meeting on a 13-4 vote, with board President Laura Kohler and members Antoinette Miranda, Michelle Newman and Christina Collins in dissent.

The board voted 17-1 on a resolution from board member Brendan Shea calling on local school boards to provide fully in-person learning for all families who desire it, but only after adding an amendment over Shea’s objection stating schools should do so “when feasible.”

Kohler and Vice President Charlotte McGuire granted Shea’s request for the resolution to be taken up on an emergency basis, allowing it to be considered Tuesday rather than at the March meeting.

Shea said kids are suffering academically, socially and emotionally even despite “valiant” efforts from teachers. “At this point in the pandemic, we know considerably more about COVID-19. We know the facts, we have the data,” he said. He said his resolution also recognizes that some families will still want a virtual option and should be given it, but said in-person learning is superior for most children. The resolution references DeWine’s goal of resuming in-person learning March 1.

“This resolution does not, it cannot, usurp the rightful authority of local school districts and communities,” he said.

Board member Eric Poklar, the only person to ultimately vote against Shea’s resolution, said he’s looking forward to the return of children to classrooms and agrees it’s the best place for most of them, but argued the board should defer to local decisionmakers.

Miranda noted the difficulty for large districts in finding adequate buses to safely get students to in-person classes. She also said transmission of the virus among students remains a concern. “If anyone is following high school basketball, it’s wreaking havoc on basketball teams,” she said. “We do see it happening where kids are getting COVID.”

Shea said he sees the resolution as setting out a goal and offering encouragement.

Collins moved the amendment to add language on feasibility, which was adopted 11-7.

Collins also introduced a new resolution Tuesday for consideration at the March meeting that would call on the department to add a disclaimer on any public reports based on this year’s state academic tests, in recognition of the disruption the pandemic has caused to learning.

The disclaimer would state the following: “Because of a wide variety of learning models in place during the 2020-2021 school year and the significant impact of the coronavirus pandemic on children throughout Ohio, these data are for the purpose of understanding how learning was impacted as a result of extreme circumstances.” The resolution also directs ODE to collect and report data on schools’ primary method of teaching -- online, hybrid, in-person -- on state report cards for the 2020-2021 school year.

The Ohio Education Association (OEA) praised Collins for her resolution.

“Teaching never stops; learning never stops. However, we must be mindful of the fact that the pandemic has, as Dr. Collins put it, ‘affected every student in Ohio, disrupting the structure of teaching and learning’ this year,” OEA President Scott DiMauro said in a statement. “Dr. Collins’ calls to lower the stakes for state testing and ensure the results are appropriately labeled to reflect the circumstances under which testing is occurring this year are an important step in safeguarding our students, educators, and communities from unfair punishments as a result of this spring’s tests.”

Following up on previous discussions about the board’s virtual format and whether to return to in-person meetings, Kohler said she’d decided to continue virtual meeting at least through April, with the intent to revisit the discussion then in preparation for a potential in-person meeting in May. She noted the full board’s ability to overrule her, and while some members expressed displeasure with her decision, no one formally moved to overturn the decision.

“I do want you to know that I have taken into consideration not just board members, I’m thinking about staff, I’m thinking about members of the public who come to speak with us, and I’m also thinking honestly about my own personal situation, and by extension, what I don’t know about your own personal situations. I’ll tell you, my father is 93 years old. I have not seen him in over a year as of this week because of his concerns about me and my concerns about him,” Kohler said, adding that she believes the board has been able to effectively carry out its duties via virtual meetings.

Kohler also invoked the more than 11,000 Ohioans who had died from the virus. “You cannot toss away a number like that and think it’s inconsequential,” she said.

Kohler said revisiting the decision in April would give more time to watch if the downward trend in infections continues, and allow more people to get access to the vaccine.

Board member John Hagan said he disagreed “strongly” with Kohler’s contention the board can do its work effectively in the virtual meeting, noting frequent technological glitches. “To drag this on for a year-plus is asinine," he said.

Board member Mark Lamoncha noted the amount of work that would be required to prepare for a return to in-person meetings, stating that the hotel board members usually stay at is closed and the ODE building lacks adequate space to accommodate all members in a socially distanced format.

Board members Meryl Johnson and Eric Poklar asked about the board’s authority to mandate mask use by members and guests at meetings.

Deputy Superintendent John Richard told board members that most ODE staff who are involved in board deliberations are working from home at the moment. He said at present ODE is following the guidance of the governor’s office and Ohio Department of Administrative Services (DAS), which anticipate a return of workers to state offices in June.

Fessler asked about hybrid meeting, suggesting those who wish to do so could simply bring their laptops to the board room in Columbus and participate in the meetings that way. She also asked about how many board members could gather together in person without violating open meeting law. Singh said 10 members would constitute a quorum of the board, though she added members would also need to keep in mind the lesser quorum requirements for the board’s committees.

Fessler also asked Brenner about the board’s nature as a constitutionally created body, noting the General Assembly is not subject to the governor’s orders. Brenner said that’s a question for the board’s counsel.