Florida Senate - 2021 (PROPOSED BILL) SPB 7070 FOR CONSIDERATION By the Committee on Education 581-03381-21 20217070pb 1 A bill to be entitled 2 An act relating to the impact of COVID-19 on 3 educational institutions; creating s. 768.39, F.S.; 4 providing legislative findings; defining the term 5 “educational institution”; prohibiting an educational 6 institution that has taken certain reasonably 7 necessary actions to diminish the impact or spread of 8 COVID-19 from being civilly liable for such actions; 9 specifying that the provision of certain services by 10 educational institutions was impossible during certain 11 periods of time; providing that certain reasonably 12 necessary actions are deemed justified; providing that 13 general publications of educational institutions are 14 not evidence of an implied contract to provide 15 specified services during the COVID-19 public health 16 emergency; providing exceptions; providing 17 severability; providing for retroactive applicability; 18 authorizing school grades calculated during a certain 19 school year to be used for eligibility for the Florida 20 School Recognition Program; authorizing a school in 21 turnaround status to exit turnaround status if the 22 school receives a grade of “C” or better; exempting 23 certain schools or approved providers from being 24 subject to sanctions or penalties as a result of 25 school grade or school improvement ratings earned 26 during a certain school year; prohibiting a high 27 performing charter school system or school district 28 from losing such designation based on school grades 29 earned during a certain school year; encouraging 30 specified persons to jointly make student promotion 31 decisions based on certain data; prohibiting results 32 from statewide, standardized assessments taken during 33 a certain school year from being used for the purposes 34 of grade 3 retention; authorizing a parent or guardian 35 who wishes for his or her grade 3 student to be 36 retained to submit, in writing, a retention request to 37 the school principal; providing that only requests 38 received by the principal on or before a certain date 39 must be considered; authorizing a principal to 40 consider a late request; requiring a principal who 41 considers a retention request to inform the student’s 42 teachers of the retention request and collaboratively 43 discuss with the parent or guardian any basis for 44 agreement or disagreement with the request; providing 45 that the parent or guardian’s decision to promote or 46 retain his or her grade 3 student after discussing the 47 retention request with the principal shall control; 48 authorizing certain students to graduate; prohibiting 49 certain performance results from being used for 50 calculating student performance measurement and for 51 evaluating personnel; waiving a provision requiring 52 summer prekindergarten programs to consist of at least 53 300 hours; waiving a requirement that no more than 22 54 percent of certain funds provided to an early learning 55 coalition be used for certain purposes; providing an 56 effective date. 57 58 Be It Enacted by the Legislature of the State of Florida: 59 60 Section 1. Section 768.39, Florida Statutes, is created to 61 read: 62 768.39 Immunity for educational institutions for actions 63 related to the COVID-19 pandemic.— 64 (1) The Legislature finds that during the COVID-19 65 pandemic, educational institutions had little choice but to 66 close or restrict access to their campuses in an effort to 67 protect the health of their students, educators, staff, and 68 communities. Despite these efforts, more than 120,000 cases of 69 COVID-19 have been linked to colleges and universities 70 nationwide, and the deaths of more than 100 college students 71 have been attributed to the disease. The Legislature further 72 finds that lawsuits against educational institutions based on 73 their efforts to provide educational services while keeping 74 students, faculty, staff, and communities safe during the COVID 75 19 public health emergency are without legal precedent. One 76 court has even acknowledged that the “legal system is now 77 feeling COVID-19’s havoc with the current wave of class action 78 lawsuits that seek tuition reimbursement related to forced 79 online tutelage.” Under these circumstances, the Legislature 80 finds that there is an overpowering public necessity for, and no 81 reasonable alternative to, providing educational institutions 82 with liability protections against lawsuits seeking tuition or 83 fee reimbursements or related damages resulting from the 84 institutions changing the delivery of educational services, 85 limiting access to facilities, or closing campuses during the 86 COVID-19 public health emergency. 87 (2) For the purposes of this section, the term “educational 88 institution” has the same meaning as in s. 768.38(2). 89 (3)(a) An educational institution that has taken reasonably 90 necessary actions in compliance with federal, state, or local 91 guidance to diminish the impact or the spread of COVID-19 may 92 not be held liable for, and shall be immune from, any civil 93 damages, equitable relief, or other remedies relating to such 94 actions. Reasonably necessary actions taken while a state of 95 emergency was declared for this state for the COVID-19 pandemic 96 include, but are not limited to, any of the following: 97 1. Shifting in-person instruction to online or remote 98 instruction for any period of time. 99 2. Closing or modifying the provision of residential 100 housing, dining, or other facilities on the campus of the 101 educational institution. 102 3. Pausing or modifying ancillary student activities and 103 services available through the educational institution. 104 (b) The provision of in-person or on-campus education and 105 related services is deemed to have been impossible for 106 educational institutions during any period of time in which such 107 institutions took reasonably necessary actions described in 108 paragraph (a) to protect students, staff, and educators in 109 response to the COVID-19 public health emergency. 110 (c) As a result of the various governmental orders and the 111 need for educational institutions to protect their communities, 112 the reasonably necessary actions described in paragraph (a) are 113 deemed justified. 114 (4) In any action against an educational institution for 115 the reimbursement of tuition or fees, general publications of 116 the institution are not evidence of an implied contract to 117 provide in-person or on-campus education and related services or 118 access to facilities during the COVID-19 public health 119 emergency. 120 (5)(a) This section does not apply to losses or damages 121 that resulted solely from a breach of an express contractual 122 provision allocating liability in the event of a pandemic event. 123 (b) This section does not apply to losses or damages caused 124 by an act or omission of a college or university which was in 125 bad faith or malicious. 126 (6) If any aspect of the immunity under subsection (3) is 127 limited by a court or by operation of law from applying to 128 certain types of claims or causes of action, the immunity under 129 this section must still be provided to the fullest extent 130 authorized by law to any other types of claims or causes of 131 action. 132 (7) This section shall apply retroactively to causes of 133 actions accruing on or after March 1, 2020, the date of the 134 declaration of the COVID-19 public health emergency by the State 135 Surgeon General, and shall apply prospectively to causes of 136 action that accrue before the end of the academic term during 137 which the emergency declaration expires or is terminated. 138 Section 2. In recognition of the public health emergency 139 caused by the COVID-19 pandemic, and notwithstanding any other 140 provision in law: 141 (1) School grades calculated for the 2020-2021 school year 142 may be used for eligibility for the Florida School Recognition 143 Program established under s. 1008.36, Florida Statutes, as 144 provided in the General Appropriations Act. 145 (2) A school currently in turnaround status pursuant to s. 146 1008.33, Florida Statutes, may exit turnaround status if the 147 school receives a grade of “C” or better. 148 (3) A school or approved provider under s. 1002.45, Florida 149 Statutes, which receives the same or a lower school grade or 150 school improvement rating for the 2020-2021 school year compared 151 to the 2018-2019 school year is not subject to sanctions or 152 penalties that would otherwise occur as a result of the 2020 153 2021 school grade or school improvement rating. A charter school 154 system or a school district designated as high-performing may 155 not lose the designation based on the 2020-2021 school grade of 156 any of the schools within the charter school system or school 157 district, as applicable. 158 (4)(a) School leaders, teachers, and parents are encouraged 159 to jointly make promotion decisions based on their students’ 160 classroom performance and progress monitoring data. Student 161 performance results from the 2020-2021 statewide, standardized 162 assessments may not be used for purposes of determining grade 3 163 retention pursuant to s. 1008.25(5), Florida Statutes. 164 (b) A parent or guardian may request that his or her grade 165 3 public school student in the 2020-2021 school year be retained 166 in grade 3 for the 2021-2022 school year. 167 (c) A parent or guardian who wishes for his or her grade 3 168 student to be retained must submit, in writing, a retention 169 request to the school principal. Only requests received by the 170 principal on or before June 30, 2021, must be considered. A 171 principal may consider a request received after that date at his 172 or her discretion. 173 (d) A principal who considers a retention request submitted 174 pursuant to subparagraph 2. shall inform the student’s teachers 175 of the retention request and collaboratively discuss with the 176 parent or guardian any basis for agreement or disagreement with 177 the request. The parent or guardian’s decision to promote or 178 retain his or her grade 3 student after discussing the retention 179 request with the principal shall control. 180 (5) A student who meets all of the requirements for 181 graduation at the end of the 2020-2021 school year except for 182 passing either or both statewide, standardized assessments 183 required pursuant to s. 1003.4282(3)(a) and (b), Florida 184 Statutes, will be deemed to have met all of the requirements for 185 graduation. 186 (6) Student performance results from the 2020-2021 187 statewide, standardized assessments may not be used for 188 calculating student performance measurement and evaluating 189 personnel pursuant to s. 1012.34, Florida Statutes. 190 (7) The provision in s. 1002.61(2)(a), Florida Statutes, 191 that requires a summer prekindergarten program delivered by a 192 public school or private prekindergarten provider to consist of 193 at least 300 hours is waived. The 2021 summer prekindergarten 194 program must consist of at least 200 hours. The full-time 195 equivalent calculation for a student in a summer 2021 196 prekindergarten program delivered by a public school or private 197 prekindergarten provider under s. 1002.71(2)(b), Florida 198 Statutes, shall be prorated for the number of instructional 199 hours reported. 200 (8) The requirement in s. 1002.89(6), Florida Statutes, 201 that no more than 22 percent of the state, federal, and local 202 matching funds provided to an early learning coalition to 203 implement its approved school readiness program plan be used for 204 any combination of administrative costs, quality activities, and 205 nondirect services is waived for the 2020-2021 and 2021-2022 206 school years, provided that the funds are used for purposes of 207 emergency recovery and direct support to providers. 208 Section 3. This act is effective upon becoming a law.