California Department of Public Health Issues New Guidance Concerning a Pathway to Physically Open Elementary Schools for In-Person Instruction

08.07.2020

Earlier this week, the California Department of Public Health (CDPH) issued new guidance to school officials and local public health officers concerning waivers to open elementary schools for in-person instruction.  The new guidance has been anticipated since July 17, when CDPH issued general guidance on a number of different topics, including school reopening (you can view our prior alert on this topic here). 

By way of background, CDPH’s July 17 guidance provided that a school could not open for in-person instruction unless the local health jurisdiction in which the school was located was off of the State’s COVID-19 monitoring list for a period of at least 14 days.  At the time, CDPH hinted that a waiver of this prohibition may be available for certain elementary schools if certain conditions were met, namely (1) if requested by the superintendent (or equivalent for charter or private schools) in consultation with labor, parent and community organizations, and (2) if local public health officers consulted with CDPH on such a waiver request after reviewing local community epidemiological data and considering other public health interventions.

In its most recent guidance, CDPH provided detailed instruction to help school officials and local public health officers assess the viability of these waivers to allow in-person instruction for elementary-aged students.  As a general matter, it appears that the primary criteria that local public health officers should consider when evaluating a waiver request concerns infection rate.  Specifically, CDPH states that a waiver should not be granted if the jurisdiction’s 14-day case rate is more than two times the threshold to be placed on the State’s monitoring list.  Currently, this equates to an infection rate in excess of 200 cases per 100,000 population.  Based on data provided by CDPH as of August 1, 14 counties (including Los Angeles County, the most populous county in the State) exceed this infection rate, with another 3 counties in excess of 190 cases per 100,000 population.  (Note: more recent data is available from the State here, which indicates higher infection rates in more counties.  Due to ongoing electronic reporting issues Statewide,^[1] exact infection rates are difficult to reliably trace on a daily basis.  It is recommended that county/local public health officers be contacted directly to determine current infection rates.)

Given the text and placement of the infection rate criteria within the guidance, it appears that CDPH has intended that this be the primary consideration in making decisions related to waiver requests.  Some local health jurisdictions have already followed suit and publicized that they will not be considering waiver requests.  For example, the Los Angeles County Department of Public Health announced on August 4 via Twitter that it would not consider waivers per the CDPH guidance as its 14-day case rate then stood at 355 cases per 100,000 population.  It is likely that most, if not all, local public health officers will do the same.

Aside from infection rate, the guidance directs school officials and local public health officers to consider a number of other factors in applying for and granting waivers, respectively.  For school officials, CDPH provides that all of the following should be included in applying to the local public health officer for a waiver:

• The waiver should be submitted by the district superintendent, the principal/head of school (for private schools), or the executive director (for charter schools);
• Prior to applying, the applicant (or his/her staff) must (1) consult with labor, parent, and community organizations, and (2) publish elementary school reopening plans on the website of the local educational agency (or equivalent). The reopening plan must address all of the topics identified by CDPH and CalOSHA in their “Guidance for Schools and School-Based Programs” (available here);
• Evidence of the aforementioned consultation with stakeholders and publication of the reopening plan must be attested to by the applicant;
• Applications should be “consolidated” for all schools intended to be reopened. In other words, when submitting an application, an applicant should include all schools he/she intends to reopen in a single application, rather than piecemeal applications; and
• Applications and all supporting documentation should be submitted at least 14 days prior to the proposed reopening date.

For local public health officers, all of the following should be considered in making a decision on whether to grant a waiver:

• Waivers are only available for grades TK through 6, even if a particular school operates for grades outside of this range;
• In addition to the application and supporting materials to be reviewed, the local public health officer must also consider several other factors in making a determination whether to grant the waiver, including, but not limited to, (1) available scientific evidence on infection rates for elementary-aged children, (2) state law directing public schools to offer in-person instruction to the greatest extent possible, (3) whether instruction can be provided in small, stable cohorts, (4) current new case rates, (5) local hospitalization trends, and (6) availability of COVID-19 testing resources;
• For consolidated applications, the local public health officer may order phased school reopenings for some or all of the schools included in the application;
• The local public health officer must consult with CDPH on all waiver applications; and
• A school must not be permitted to open for in-person instruction unless/until the waiver is granted.

Generally speaking, while the new guidance appears to provide a clear framework for school and local public health officers, the requirements contained therein represent significant barriers to allowing school reopenings at this time.  Given the upward statewide trend of infection rates, local public health officers will likely be hesitant to consider applications, much less grant them, at this time.  If you are considering a waiver application, it is recommended that you consult with your local public health officer and your legal counsel to assist in determining whether to embark on the process.

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^[1] The Los Angeles Times reported on August 6, 2020 that the State’s electronic reporting system, called CalREDIE, is currently experiencing issues reporting testing results to the State’s disease registry system.  As a result, the Times reports that California “lacks an accurate count of coronavirus infections, leading health officials to freeze the state’s watchlist, with no counties added or removed.”  You can access the Los Angeles Times article here.

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