Coronavirus and Schools: Payments to APSs
CORONAVIRUS UPDATE
Thanks for your continuing support and guidance. Quick question: Can APSs continue to bill school districts for related services in addition to tuition? Maybe the better question….do school districts need to continue to pay for services that clearly aren’t being provided?
Act 13 includes the following obscure guidance related to this question:
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.
The language of this “hold harmless” provision is very broad. It does not appear to condition the obligation to pay the private school the amount it would otherwise have received on that school implementing every service exactly as it would have prior to the closure. As long as the private school is “continuity of education,” it is entitled to full payment.
Some exceptions to this general rule might be possible, however. For example, if the student in questions is attending the APS on an approved PDE Form 4010 (allowing for 60-40 cost sharing between the commonwealth and the school district) and the APS has insisted on a supplemental contract with the district to pay for a particular related service or a paraprofessional ala carte, separate and apart from the Form 4010 cost sharing arrangement, it is very possible that the only contractual arrangement the district has with the APS is for that separate service. If the APS is not providing that separately-contacted service as part of its “continuity of education” plan, the district would have a very good argument in support of non-payment.
If, on the other hand, the district contracts directly with the APS for the whole package of educational programs and services for a student (many APSs charge districts the full freight on the ground that they do not have any “4010 slots” open, placing the district on a “waiting list” for a subsidized spot), the Act 13 language very likely will require that district to pay the APS the full amount it would have paid but for the closures, even if every service in that package is not delivered under the APS’s “continuity of education” plan.
Perhaps, however, the district has purchased a whole package of services from the APS ala carte, in accordance with a series of separate contracts—for example, one contract for basic tuition, a second for speech therapy, and a third for PCA support. If the APS’s “continuity of education” plan includes some instruction and some speech therapy but no PCA support, the district would have an argument in support of non-payment under the separate PCA contract.
Bottom line: the language of Act 13 is less than clear. It is, however, intended to serve a broad “hold harmless” public policy, and whether you will be able to escape payment obligations will depend on the particulars of your contracting relationship.