Coronavirus and Schools: Opt-out Language for ESY
Hope you're doing well, and thank you for your tremendous efforts over the last couple of months. If I understood the context correctly... you [recently] suggested that we negotiate “opt-out” language in our ESY contracts for students attending outside placements. This is something we would like to do, and our intention is to insert contract language akin to, “District will reimburse ESY expenses for virtual programs provided that parents provide written notice that their child will participate in a virtual program. If the parents choose to decline ESY based on the shift to virtual instruction, the District will have no financial obligation for ESY for that student.” Sound OK? Please let us know if you have other suggestions.
Actually, although I heard several districts suggest that they intend to include such ESY “opt out” language in their contracts with private schools, I did not actually weigh in on that issue during the discussion [that you reference]. Whether you can include in an ESY services contract—or now add to an existing contract—the “opt out” language you are suggesting is not as clear as we would like it to be. The relevant language in Act 13 provides as follows:
A private or nonpublic school which was closed because of the 2020 pandemic may not receive more or less payment from school entities for any student placed by a school entity and enrolled as of March 13, 2020, as long as the private or nonpublic school is offering continuity of education during the period of closure.
If you do not yet have an agreement in place with a private school for ESY services for a student, Act 13 would clearly allow inclusion of an “opt out” clause for students who elect not to participate in virtual ESY. The reason is clear: the student was not “enrolled as of March 13, 2020” in a program that included ESY services. If, on the other hand, the existing contract for a student “enrolled as of March 13” already included ESY services as part of the package and did not include an “opt out” clause in the event of student non-participation, you might have difficulty adding such a provision now. For one thing, the private school would have little incentive for adding such language; for another, the “opt out” would be inconsistent with the “hold harmless” intent of the above-quoted provision of Act13. The private school would be able to argue that it has an agreement with you that would entitle it to a certain amount for programming that includes ESY, and that its “continuity of education” plan includes ESY services. Some contracts allow for discontinuation of payment if the student withdraws or fails to attend, but if your existing contract does not include such language, you will be hard pressed to insist on including it now.
Let’s assume the positive, however. Let’s assume you are developing, or the private school has offered, a separate contract or a contract addendum for 2020 ESY services (in other words, ESY is not already part of the package under your existing contract with the school). In that case, “escape clause” language of the sort you have proposed above would be perfectly acceptable.