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Health Law Delay Eases Panic in School Districts over Potential Penalties

Cooperative spirit between Association leaders, school support staff, and district officials in Nebraska leads to an agreement.

The Obama administration will not penalize school districts, businesses, and other organizations that do not provide health insurance in 2014. Instead, the administration recently announced it will delay until 2015 enforcement of a provision of a health care reform law that establishes possible penalties on employers with at least 50 full-time employees depending on whether and how they offer health coverage.

The reprieve will give school districts more time to consider what to do about possible penalties related to the Patient Protection and Affordable Care Act (PPACA). Many school officials wrongly considered their choices to be: Start providing health benefits or cut back the hours of workers so that they would not be categorized as full-timers. Part-time workers cannot cause penalties.

Monumental battles were brewing in school districts across the country over the possibility of downsizing mostly education support professionals’ (ESPs’) jobs or cutting their hours to dodge the law’s penalty provisions.

In anticipation of the penalty, ESP members of the Plattsmouth Education Association (PEA) and Plattsmouth Board of Education in Nebraska were at odds over how best to meet the new law’s employer requirements. The school board favored reducing hours to make school support staff part-time, but the district's ESPs wanted to maintain student services and wage levels.

At a June 10 school board meeting, the nine-member board wanted to vote on a plan that would avoid purchasing health insurance for employees who were not already covered by the district’s group plan.

“They said they did not have the money available,” says Marlene Wehrbein, a UniServ director with the Nebraska State Education Association (NSEA).

For their plan to work, finance committee board members offered a proposal that would have cut back work hours, and therefore wages, of many ESPs. The board’s motivation was to limit non-certified employees to working 28 hours or less per week in any given week, a move designed to insulate the district against possible penalties for failing to offer them health benefits. According to the law, “full time” is defined as an average of 30 hours a week during a month.

ESPs wanting to recover lost wages were going to be offered the opportunity to work additional hours during the summer and weeks during the year to get the same number of hours. If they did not work additional weeks they would lose significant wages. But NSEA officials understood they had more options and that it was not necessary to cut employee hours to fewer than 30 every single week.

“Our goal for ESPs was to have no loss of wages,” says Wehrbein. “Most ESPs are covered by their spouses’ policies.”

In Plattsmouth, NSEA took into account that there are hardly any months during a school year in which hourly employees get paid for a full day of work every single day of every week. The reason: spring break, winter break, federal holidays, training days, late-start or early release days.

“There are many options for finding solutions to the 30-hour work week dilemma,” says Wehrbein. “We believed there would be a cost to students, employees, and the district if they cut hours and it wasn’t necessary.”

The PEA is a wall-to-wall Association that represents 88 percent of district teachers (133) and 19 ESPs, most of them paraeducators. However, only teachers are recognized as a bargaining unit. In Plattsmouth, ESPs do not negotiate contracts; they serve as at-will employees.

“That is significant,” says Wehrbein, “because they walked into the board meeting from a position of zero power. “

While health insurance was not the main issue in Plattsmouth as it might be in other districts, a reduction of up to nine work hours a week would mean severe wage cuts over the course of a year.

“Our day is filled with student contact time,” said Joyce Foster, a special education paraeducator who spoke at the board meeting. “Most paras have a morning duty, such as bus duty, the breakfast room, walking club, or drop off duty, (while others) have lunchroom duty along with recess duty every day. Which of these duties can be cut?”

Foster’s husband, Tony, was one of several board members who met with Wehrbein to discuss possible solutions that would not cut back ESP work hours. In the weeks leading up to the decisive meeting, Wehrbein had arranged meetings with the superintendent, district financial advisors, school attorney, board members, and Joel Solomon, a National Education Association (NEA) staff member and authority on the PPACA.

Since working in Plattsmouth over the last eight years, Wehrbein has focused on helping to organize PEA members to advocate for themselves. Through grassroots organizing they had garnered the support of teachers, parents, community members, and several board members.

“And they appeared at the meeting together in mass,” Wehrbein says. “They showed unity.”

The day before the June board meeting, Wehrbein met with ESPs and urged them to invite allies to the meeting. More than 65 people showed up in support while eight ESPs read testimonials. Others sent e-mails to board members expressing their concerns.

Danita Ostransky has worked as a paraeducator at the district’s early childhood center for more than 13 years.

“Paraeducators in the early childhood building help keep the staff-to-child ratio within the recognized state ratio limit,” Ostransky said at the meeting.

In a telephone interview, Kelly Henry, a special education teacher, said teachers cannot do their jobs effectively without paraeducators by their side.

“The kids wouldn’t be as successful if we didn’t have paras,” said Kelly, who also spoke during the board meeting. “Teachers can’t be everywhere.”

After several amendments failed, board members passed a motion stating school support staff would be allowed to work up to an average of 29 hours per week (1,189 hours per year) over the course of the entire school year, starting in September.

Any amount of pay that would be lost due to total number of hours worked over the same 41-week period they were working this current year would be recovered by increasing their pay. In other words, ESPs would earn no less in the upcoming school year than they had in the 2012-13 school year, over the same number of weeks, even if they worked fewer hours.

The measure also allows ESPs to coach or perform extra duties as long as they do not surpass 1,189 hours. The board passed the plan with the understanding that the district will later increase the hourly pay for all support staff.

“The eventual solution adopted was a hybrid of several that had been discussed,” Wehrbein said.

While school districts and other employers now have an extra year before enforcement of certain PPACA provisions, PEA exemplifies the effectiveness of grassroots organizing under stressful conditions.

“Even though the board could have enacted what they initially proposed, and could have implemented that policy in a way that would have been very damaging, financially, to ESPs, it was our organizing efforts that got us a different result,” Wehrbein added.