Contracted Services to Boards of Education during COVID-19

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time given the unprecedented challenges presented to our Boards with COVID-19 and the school closure to students.  We have been providing guidance on how best to meet the needs of your students, staff, and community.  We now have received several questions regarding payment for contracted services.  These services are generally provided by another entity, which employs the individuals, as opposed to the Board directly employing the staff.  Examples of contracted service workers can include bus drivers, cafeteria workers, maintenance or grounds workers, custodial workers, paraprofessionals, related service providers and many others.  While this situation is both evolving and fluid, and this guidance is of course subject to any newly enacted Federal, State, or local laws, rules, regulations or orders, in evaluating your relationship with your contracted service provides we think you should consider the following items:

  • You generally do not pay for services you do not receive, so ask is work under the contract still being performed?  A Board should of course pay for goods and services rendered, and do so as expeditiously as possible as many small businesses may be relying on their contracts with public entities.   Please see our guidance regarding holding meetings to ensure payments can be approved as well as our guidance regarding emergency contracting.  While it is unlikely that bus drivers or paraprofessionals are working, IT support, maintenance and grounds, nursing and other related service providers may still be working.  Check with the contractor.
  • Can work be conducted remotely by contracted service providers?   Some work, like writing reports, evaluating testing results, etc., may be able to be performed remotely.   Maybe there’s a way to remotely provide related services such as speech, PT, OT or other services by video conference?   Can you provide technology to your students so that they can benefit from such services?  This may be important in making your good faith efforts to provide FAPE to your students identified as eligible for special education and related services.  IEP meetings may need to be scheduled so that parents and providers appear remotely.
  • Federal legislation was just passed that may provide some relief to the contractors.   Ask your contractor if they are paying their employees, maybe they will need help in getting assistance from Federal or State agencies.
  • Check contracts for what’s referred to as a “force majeure” clause.  This common clause in contracts may partially or fully excuse both parties from performance or payment when an extraordinary event beyond the control of the parties, like a strike, war, or in this case health emergency, or an “Act of God” (hurricane, flood, earthquake, etc.) prevents the contract from being fulfilled.
  • Check the contracts  for provisions regarding payment during suspension of services – you should pay for services already rendered but generally do not pay for services not rendered and you generally do not prepay for services.
  • Check what insurance is provided by and with your contractor (it may include business interruption insurance for them); what policy do they have and were you an additional insured.

As always, if you have any further questions, please do not hesitate to contact us.

Authored by: William S. Donio, Esq.