06/13/22- Guidance Related to 2021 HB563 (KRS156.070)

June 13, 2022 2021-2022 News Releases

THIS GUIDANCE DOCUMENT NOW SUNSET  AND SUPERSEDED BY 2023 SB145 EFFECTIVE JUNE 29, 2023

Background

The Kentucky General Assembly passed House Bill 563 (HB 563) during the 2021 Regular Session, and it became law on June 29, 2021, with full implementation of its provisions on July 1, 2022. HB 563, now codified into Kentucky Revised Statutes (Acts. Chapter 167 (2021) generally addresses two educational choice issues. Sections 1-3 provide amendments to KRS 157.350, 158.120 and 156.070 and specify how local boards of education shall adopt a nonresident pupil policy under which the district shall allow enrollment of nonresident pupils and the funding associated therewith. Section 4 provides for reporting requirements of the KDE to the Legislative Research Commission and Interim Joint Committee on  Education on options for the equitable transfer of education funds. Sections 5-19 of the Act are cited as the Education Opportunity Account Act or EOA Act.
This guidance provides critical updates to support schools and districts as they implement the provisions of HB 563 and follows weeks and months of consultation with KDE, members and staff of the Kentucky General Assembly, and various constituent groups. The information contained herein is solely related to the impact of the amendments to KRS156.070, which restrict interscholastic athletic participation in the event of a transfer into a district by a nonresident student. This provision is now contained in the statute as referenced and does not contain Due Process or exception options not expressly contained in KRS157.350.

KHSAA Implementation

To fully implement this legislation, the KHSAA will consolidate its prior Bylaws 7 and 8 into a singular bylaw (hereinafter Bylaw 7), and the provisions of HB563 will be contained as a new Bylaw 8, including interpretations to it.

Bylaw Amendment Required due to passage of 2021 HB563 amending KRS 156.070:

Bylaw 8 – Per Acts Chapter 167 (2021 HB563), as passed by the Kentucky General Assembly in 2021, which amended KRS 156.070(2)(h), Any student who transfers enrollment from a district of residence to a nonresident district under KRS 157.350(4)(b) shall be ineligible to participate in interscholastic athletics for one (1) calendar year from the date of the transfer.

Case BL8-1- What are the key definitions and notes regarding implementing this legislative change?

• “Transfers enrollment” means enrolling as a nonresident student into a school district after attending a school in the district of residence. Pre-existing nonresident students who continue to be nonresident students in the same school system are not impacted if they do not change schools.
• “from a district of residence to a nonresident district“ means that these provisions regarding eligibility are of no impact for resident district students, and the standard provisions of KHSAA Bylaw 6 apply to those resident students. Even then, the provisions of Bylaw 6 apply only for those students who have been in grade 9, represented a varsity team, and subsequently transferred.
• “interscholastic athletics” means any time a school is playing another school, irrespective of grade level.
• “one (1) calendar year from the date of the transfer” means one year from the date of enrollment at the new school as verified by the school and school system.
• NOTE: It should be noted that 157.350 (4)(c)) creates an exception to the provisions of the period of ineligibility under KRS 156.070(2)(h) due to the new employment of the parent in the district.
• NOTE: Any of these interpretations dealing with a student transferring into a school as a nonresident student should presume that school capacity as defined within the bill was not exceeded.

Case BL8-2- Are there additional regulations, definitions and statutes that KHSAA member schools should ensure are understood by all in the school and district related to this change?

• With respect solely to this change, it is essential to have clear definitions within district regulations, policies and practices to ensure that enrollment requirements are clearly defined. Such issues, including “when is a student enrolled,” are to be defined within the district and should be consistent through the system office to all schools as those definitions are not contained in statute. In legal parlance, enrollment is “the act of recording or registering” and enroll is “to register as an official record”. Therefore, this definition and timing should be established in collaboration and clarity through the superintendent, central office staff, the Board attorney, and the Kentucky Department of Education. It should comply further with any relevant statute, regulation and regulatory guidance. For specific questions about enrollment requirements, districts should consult the KDE.
• Additionally, schools and systems should review several resources, including-
  • The complete text of the law is at https://apps.legislature.ky.gov/law/acts/21RS/documents/0167.pdf;
  • The original implementation guidance from KDE is at https://education.ky.gov/districts/enrol/Documents/HB%20563%20Guidance_.pdf;
  • The current version of the KDE Pupil Attendance Manual is at https://education.ky.gov/districts/enrol/Documents/2021-22%20Pupil%20Attendance%20Manual%208%2016%202021.pdf;
  • The previously distributed explanatory presentation from KDE at https://education.ky.gov/CommOfEd/web/Documents/Superintendents%20Webcast%202-15-22%20FINAL%20V2.pdf;
  • Statutes and Regulations Impacting Attendance and Calendar at https://education.ky.gov/districts/enrol/Documents/Attendance%20and%20Calendar%20Laws%20and%20Regs%202020-21.docx

Case BL8-3- What are the enforcement mechanisms for KRS 156.070(2)(h) provisions?

For students competing in high school athletics at any level (freshman, JV or varsity), regardless of grade level enrolled, using ineligible players results in contest/event forfeiture and other penalties within Bylaws 1, 17, and 27.
For those students competing solely in below high school level competition, any penalties or enforcement from an athletics standpoint lies with the local school, school district, conference, or association of schools.

Case BL8-4- Do students deemed ineligible solely under the provisions of KRS 156.070(2)(h) have appeal rights under the KHSAA Due Process Procedure?

No. This statutory provision contains specific application language and no authority to waive its application. As such, the KHSAA is without power or jurisdiction to review the matter or grant relief from this statutory provision set forth by the Kentucky General Assembly. 

Case BL8-5- What is the resolution of a possible conflict between the provisions of KRS 156.070(2)(h) and the currently adopted Bylaw 6 (or other KHSAA bylaws)?

The statutory language of KRS 156.070(2)(h) prevails in the event of a conflict. For example, a student has represented a member school in their district of residence in varsity athletics after enrolling in grade 9 but now chooses to attend another school as a nonresident student. In that case, the statutory provisions of ineligibility for one year from the date of enrollment supersede the provisions of Bylaw 6 and the period of ineligibility, as well as superseding the provisions allowing for a waiver of the period of ineligibility.

Case BL8-6- Do the Bylaw 14 provisions on district-approved non-varsity play apply to students who are enrolling as a nonresident student?

No. The statute stipulates no interscholastic competition for those students subject to KRS 156.070(2)(h). There is no option within the law to allow for any play against an outside opponent at any level.

Case BL8-7- Do the provisions of KRS 156.070(2)(h) apply to elementary and other non-KHSAA contests?

At the non-high school levels of competition, KHSAA bylaws do not govern, which might impact penalties for violations as stipulated in Case BL8-3. However, the statute states that the provisions apply for interscholastic competition regardless of level. As such, any school playing an interscholastic opponent is subject to the restrictions in KRS 156.070(2)(h) for those students who are enrolled as nonresident students.

Case BL8-8- How is the situation resolved when a student’s family transfer into a district as a resident student while maintaining their prior residence when transferring schools after July 1?

Per KDE, in determining a student’s district of residence, the first examination would be  the residence of the parents or legal guardians. In most situations, that is determinative and the inquiry ends. However, if the student’s parents live in multiple districts (i.e. separated parents), or the student is living with someone other than the parents/legal guardian, then KDE would look to see where the student spends most nights to determine his/her district of residence.
As such, if the determination is made that the “most nights” are outside of the district, the student(s) in the household are to be considered a nonresident student(s) and the provisions of athletic ineligibility would apply. 

Case BL8-9- A student attempts to enroll before July 1, but the student is not enrolled until after July 1.

For applying the provisions of KRS 156.070(2)(h), this student does not meet the July 1 deadline outlined in the statute if unable to enroll prior to July 1.

Case BL8-10- A student and family live in and are enrolled in their school of residence in Jeffersonville (IND) and then enroll at a JCPS school as a nonresident student.

Suppose the student is recorded as a nonresident student in JCPS (or another common school) enrolling after July 1. In that case, 2022, KRS 156.070(2)(h) provisions on ineligibility for one year apply, and the student is ineligible for any interscholastic athletics for one year from the first date of enrollment, regardless of compliance with KHSAA Bylaw 6.
NOTE: Per KDE guidance, absent meeting the exception contained in 157.350(4)(c), this student may not be included in average daily attendance for the purpose of state SEEK funding, regardless of the issues surrounding athletics.

Case BL8-11- A student and family live in the Scott County district and attend Bourbon County as a nonresident student, then transfer to Paris Independent, and the parent is NOT employed in the newly enrolled district.

KRS 156.070(2)(h) provisions on ineligibility would not apply as this student was and remains a nonresident student. The student would, however, be subject to KHSAA Bylaw 6.

Case BL8-12- The student and family live in the Franklin County district. The student has attended Franklin County Schools as a resident student, moved to Woodford County and subsequently enrolled at Paul Laurence Dunbar. The parent is NOT employed in the Fayette County Public Schools.

KRS 156.070(2)(h) provisions on ineligibility for one year apply. The student is ineligible for interscholastic athletics for one year from the first enrollment date per statute, regardless of compliance or adherence to KHSAA Bylaw 6.

Case BL8-13- The student and family live in Franklin County (and attend a Franklin County school or Frankfort Independent), move to Woodford County and subsequently enroll at Paul Laurence Dunbar. The parent IS employed in the Fayette County Public Schools.

KRS 156.070(2)(h) provisions on ineligibility for one year do NOT apply (due to KRS 157.350 (4)(c)). However, the student is subject to KHSAA Bylaw 6.

Case BL8-14- The student and family live in Fayette County, and the student attends Lafayette as assigned by residence and transfers to Henry Clay (for ROTC).

KRS 156.070(2)(h) provisions on ineligibility for one year do NOT apply as the district is Fayette County Public Schools, and this would be an out-of-assigned area transfer, not a nonresident student per KRS 157.350. Residence in the specific locally assigned school district boundaries but within the overall school system district boundaries would not categorize the student as a nonresident. However, local district policy on eligibility and KHSAA Bylaw 6 apply in this case. This would apply to any public school district with multiple high or middle schools.

Case BL8-15- The student and family live in Fayette County, enrolled at Lafayette, and transferred enrollment to Lexington Catholic HS.

KRS 156.070(2)(h) provisions on ineligibility for one year do NOT apply as the student is not a nonresident student at a common school. However, the student is subject to KHSAA Bylaw 6.

Case BL8-16- The student and family live in Mayfield Independent, and the student has long attended Graves County under a KRS 157.350 written “reciprocal” agreement with the resident district?

The law only impacts those that transfer enrollment, so this student is not-impacted by the provisions of KRS 156.070(2)(h) as adopted in 2021. However, anytime after July 1, if this student were to enroll at Mayfield Independent, the provisions (and KHSAA Bylaw 6) would apply.
Schools should note that previous KRS 157.350 agreements remain in place until June 30, 2022, per KDE guidance but are to be replaced with internal district policies beginning July 1, 2022.

Case BL8-17- The student and family live in Bullitt, Fayette, Hardin, Jefferson or Oldham County (or any school district with multiple schools), and one of the schools closes. Due to the closure, the family wants to attend school in another county as a nonresident student. How do the provisions of KRS 156.070(2)(h) apply?

If this situation occurs after July 1, KRS 156.070(2)(h), the provisions on ineligibility for one year apply, and the student is ineligible for any interscholastic athletics for one year from the first date of enrollment per statute, regardless of compliance or adherence to KHSAA Bylaw 6.