Governor Signs COVID-19 Reporting and Safety Plan Legislation for Schools

On March 5, 2021, Governor Newsom approved Assembly Bill 86 (AB 86), which imposes COVID-19 case reporting, COVID-19 school re-opening status reporting, and COVID-19 Safety Plan requirements largely similar to those imposed by the California Public Health Department (CDPH) COVID-19 and Reopening In-Person Instruction Framework & Public Health Guidance for K-12 Schools in California, 2020-2021 School Year, that was issued on January 14, 2021.  Among other things, AB 86 also provides further funding to public schools as long as they offer in-person instruction by May 15, 2021.

Required COVID-19 Case Reporting By Schools

With regard to COVID-19 case reporting, every school, including private schools, maintaining a kindergarten and/or any of grades 1 to 12, must notify its local public health department of any known student or employee who tests positive for COVID-19 if the student or employee was present on the school’s campus while they were infectious.  In this circumstance, schools must make this report immediately and in no case later than 24 hours after learning of the positive case and provide the following information, if known:

1. Identifying information of the individual who tested positive, including full name, address, telephone number, and date of birth;
2. The date of the positive test, the school or schools at which the individual was present onsite, and the date the individual was last onsite at the applicable school or schools; and
3. The name, address, and telephone number of the person making the report.

AB 86 states that schools do not need consent from the positive individuals to disclose their personally identifiable information in order to report this information to the local public health department because the disclosure is necessary to protect the health or safety of the individuals.  The local public health department will use the information to take the steps necessary to investigate, prevent, and control the spread of COVID-19.  Local public health departments are required to keep the information confidential, and may not disclose it except under the following circumstances:

1. To the State Department of Public Health to the extent deemed necessary by the local health officer for an investigation to determine the source of infection and to prevent the spread of COVID-19.
2. If required by state or federal law.
3. With the written consent of the individual to whom the information pertains or the legal representative of the individual.
4. If the source of infection or exposure of other persons is believed to be outside the local jurisdiction, in which case the local health officer shall notify and share necessary information with local or government public health officials for the relevant jurisdictions to monitor, investigate, prevent, and control the spread of COVID-19.

This reporting requirement is in addition to any other statutory, regulatory, or local requirements that require reporting of COVID-19 cases and/or outbreaks, including requirements imposed through Cal/OSHA COVID-19 regulations and as set forth in the COVID-19 Prevention Program (CPP).

For public schools only, beginning March 15, 2021, a single school site of a local educational agency that has two or more outbreaks of COVID-19, as identified by the local health officer or the State Department of Public Health, shall be subject to a safety review by the CDPH.

COVID-19 School Reopening Status Reporting

Effective March 15, 2021, every school district and school, including private schools, maintaining a kindergarten and/or any of grades 1 to 12, must notify the CDPH of the following information on or before the second and fourth Monday of each month:

1. The number of pupils enrolled by school-site and, if applicable, school district.
2. For non-classroom-based charter schools, the total number of pupils enrolled and the number of pupils attending each resource center, if any.
3. The number of pupils participating in full-time in-person instruction by school-site and, if applicable, school district.
4. The number of pupils participating in a mix of in-person and distance learning, known as hybrid learning, by school site and, if applicable, school district.
5. The number of pupils participating in distance learning by school-site and, if applicable, school district.
6. The number of school employees who work onsite at a school by school-site and, if applicable, school district.
7. The number of pupils being served in cohorts while the school is closed for in-person instruction and the support and services they are receiving.
8. For school districts with school-sites with pupils participating only in distance learning, the reasons why in-person instruction is not being offered and the barriers the school-site or school district faces in providing in-person instruction.
9. Any additional information requested by the CDPH.

Updated information on the school reopening status reporting will likely be included on the CDPH Safe Schools for All Hub as the March 15, 2021 effective date approaches.

COVID-19 Safety Plan

AB 86 also codifies the COVID-19 Safety Plan requirements set forth in the CDPH COVID-19 and Reopening In-Person Instruction Framework & Public Health Guidance for K-12 Schools in California, 2020-2021 School Year.  The COVID-19 Safety Plan consists of two components: (1) Cal/OSHA COVID-19 Prevention Program (CPP); and (2) the COVID-19 School Guidance Checklist.  Liebert Cassidy Whitmore has created a template CPP for schools, which can be purchased, and Cal/OSHA has also made a template CPP available.  The COVID-19 School Guidance Checklist is located on the CDPH Safe Schools for All Hub.

As a reminder, every local educational agency and private school offering in-person instruction for kindergarten and/or any of grades 1 to 12, must post a completed COVID-19 Safety Plan on its internet website home page.  Further, any local educational agency and private school not offering in-person instruction, must post a completed COVID-19 Safety Plan on its internet website home page at least five days before offering in-person instruction.

Local educational agencies must also submit their COVID-19 Safety Plan to their local public health department and the CDPH.  If the local public health department or CDPH identifies a deficiency in the local educational agency’s COVID-19 Safety Plan, the local public health department or CDPH will notify the local educational agency and its county office of education of the deficiency and require the local educational agency to resolve the deficiency before providing in-person instruction.

Funding for Local Educational Agencies

Applicable to public education only, AB 86 provides $6,557,443,000 to local educational agencies to offer in-person instruction to the greatest extent possible during the 2020–21 school year, consistent with the Local Control Funding Formula and to expand in-person instructional time and provide academic interventions and pupil supports to address barriers to learning and accelerate progress to close learning gaps. Local educational agencies are encouraged to prioritize pupils who would benefit the most from in-person instruction and who have been identified as needing integrated supports or academic interventions, including, but not limited to, pupils with disabilities, youth in foster care, homeless youth, English language learners, pupils from low-income families, pupils without access to a computing device, software, and high-speed internet necessary to participate in online instruction, disengaged pupils, credit-deficient high school pupils, pupils at risk of dropping out, pupils with failing grades, and pupils identified as needing social and mental health supports.

Local educational agencies must offer in-person learning by May 15, 2021 or the agency forfeits a portion of the funds.  The requirements for in-person instruction vary depending on the tier under the State Department of Public Health’s Blueprint for a Safer Economy that the local educational agency is in.  Additionally, in order to receive the maximum amount of funding, a local educational agency must implement a learning recovery program that, at a minimum, provides supplemental instruction, support for social and emotional well-being, and meals and snacks to, at a minimum, pupils who are eligible for free or reduced-price meals, English learners, foster youth, homeless pupils, pupils who are individuals with exceptional needs, pupils at risk of abuse, neglect, or exploitation, disengaged pupils, and pupils who are below grade level, including, but not limited to, those who did not enroll in kindergarten in the 2020–21 school year, credit-deficient pupils, high school pupils at risk of not graduating, and other pupils identified by certificated staff.  The funding provisions of AB 86 are specific and complex.  We encourage public schools to consult an attorney with any questions.