State Guidance Issued for Elementary School Waivers, Extracurricular Activities, and FAQs for Reopening K-12 Schools

On August 3, 2020, the California Department of Public Health (CDPH) issued new guidance for schools and school-based programs.  The latest guidance includes frequently asked questions from schools and provides information regarding the waiver process for in-person learning elementary education.

1. CDPH Guidance Issued for Waivers

Under the CDPH’s “COVID-19 and Reopening In-Person Learning Framework,” the CDPH permitted schools to reopen for in-person instruction if they are located in a local health jurisdiction (LHJ) that has not been on the state’s county monitoring list within the prior 14 days. If the LHJ has been on the monitoring list within the last 14 days, the school must only conduct distance learning until their LHJ has been off the monitoring list for at least 14 days.

The framework also authorized elementary schools to apply for and local health officers to grant a waiver of this criteria so that elementary schools could open for in-person instruction under specified conditions. In order to be granted a waiver, applicants must satisfy all waiver requirements as specified on the CDPH’s website:

• The CDPH recommends that schools within jurisdictions with 14-day case rates more than two times the threshold to be on the County Monitoring List (>200 cases/100,000 population) not be considered for a waiver to re-open in-person instruction.

•  Los Angeles County Public Health will not currently consider any applications for elementary school waivers as the current case rates in LA County of 355 cases/100,000 population exceed that threshold.

•  Contra Costa County Health Services will not be supporting elementary school waiver applications because they consider in-person education too risky at this time even though their current case rates are below the 200 cases/100,000 threshold rate.

• Closed elementary schools in counties on the monitoring list within the prior 14 days may not open for in-person instruction until they have received approval of a waiver submitted to the Local Health Officer (LHO).
• The elementary school waiver is applicable only for grades TK-6, even if the grade configuration at the school includes additional grades.
• A private school principal/head of school, executive director of a charter school or a district superintendent (hereinafter applicant) can apply for a waiver from the LHO to open an elementary school for in-person instruction.
• Applications and all supporting documents must be submitted to the LHO at least 14 days prior to the desired reopening date.
• Prior to applying for the waiver, 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). Examples of community organizations include school-based non-profit organizations and local organizations that support student enrichment, recreation, after-school programs, health services, early childhood services or provide family support.
• As described in the CDPH/CalOSHA Guidance for Schools and School-Based Programs, elementary school reopening plans must address several topics related to health and safety, in a manner consistent with guidance from CDPH and the local health department. Those topics include:

• Cleaning and disinfection

•  Small, stable, cohorting

•  Entrance, egress, and movement within the school

•  Face coverings and other essential protective gear

•  Health screenings for students and staff

•  Healthy hygiene practices

•  Identification and tracing of contacts

•  Physical distancing

•  Staff training and family education

•  Testing of students and staff

•  Triggers for switching to distance learning

•  Communication plans

• When applying for the waiver, the applicant must submit to the LHO a waiver application form, to be provided by the LHO. The application must include evidence of (1) consultation with labor, parent, and community organizations and (2) publication of the elementary school reopening plans on the website of the local educational agency (or equivalent).  Although CDPH did not specify what “equivalent” means for private schools, at a minimum it likely requires publication of the reopening plans on the private school’s website.

•  The applicant must sign an attestation confirming the names and dates that the organizations were consulted. If school staff are not represented by a labor organization, then the applicant must describe the process by which it consulted with school staff.

• The applicant must confirm publication of the elementary school reopening plans on the website of the local educational agency (or equivalent).

• If applying for an independent, private, faith-based, or charter school, the applicant should submit an application and publish a plan for each school.
• Upon receipt of a waiver application, the LHO will review and consider the application, supporting materials, and the following:

•  Available scientific evidence regarding COVID-related risks in schools serving elementary-age students, along with the health-related risks for children who are not provided in-person instruction.

•  State law directing schools to “offer in-person instruction to the greatest extent possible.” (Ed. Code §43504).

•  Whether elementary in-person instruction can be provided in small, stable cohorts.

•  Local health guidance, safety plans, availability of appropriate PPE, and availability of public health and school resources for COVID-19 investigation and response.

•  Current new case rate, testing % positivity trends, and the number and degree of indicators above thresholds to be on the County Monitoring List.

•  Local hospitalization trends and hospital capacity.

•  Any other local conditions or data contributing to inclusion on the County Monitoring List.

•  Availability of testing resources within the community and via employee health plans.

•  The extent to which the applicant has consulted with staff, labor organizations, community, and parent organizations.

• Following review, the LHO will consult with CDPH regarding the determination whether to grant or deny the waiver application. Consultation with CDPH is accomplished by submitting a notice pursuant to CDPH instructions.

• CDPH will acknowledge receipt of the notice and follow up if there are any questions or concerns. CDPH will provide technical assistance as requested.

• If the LHO has not received a further response within three business days of submission, the waiver application may be approved or denied consistent with CDPH instructions.

• LHOs may conditionally grant an application with limits on the number of elementary schools allowed to re-open or allow re-opening in phases to monitor for any impact on the community.

Now that state guidance on the waiver process has been released, we expect other counties to release further information about the procedures for applying for a waiver within that county, including whether the county is currently accepting applications for waivers.  For example, Santa Clara County has published the process for applying for a waiver on its website, available at https://www.sccgov.org/sites/covid19/Pages/mandatory-directives-schools.aspx.

The CDPH also published a Waiver Letter Template and Cover Form and a Waiver Notice for LHJs to use.

2.  New CDPH Guidance Issued for Extra Curricular Activities

Additionally, on August 3, 2020, the CDPH published guidelines for youth sports and extracurricular activities. Under the guidance, youth sports and physical education are permitted only when the following can be maintained:

1.  Physical distancing of at least 6 feet between participants; and

2.  A stable cohort, such as a class, that limits the risks of transmission.

The CDPH guidance states that activities should take place outside to the maximum extent possible. Outdoor and indoor sporting events, assemblies, dances, rallies, field trips, and other activities that require close contact or that would promote congregating are not permitted at this time. Tournaments, events, or competitions, regardless of whether teams are from the same school or from different schools, counties, or states, are also not permitted at this time under the guidance. Additionally, activities where there is an increased likelihood for transmission from exhaled droplets, such as band and choir practice and performances, are not permitted.

3.   CDPH Issues New FAQ Guidance for Schools

On August 3, 2020, the CDPH also issued new FAQs for Schools, which is accessible here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Schools-FAQ.aspx.

The FAQ’s include the following guidance and answers to common questions:

General Guidance on Directives

• The FAQs confirm the Governor’s authority to require all schools to comply with the CDPH guidance and directives regarding reopening schools, and provides that willful violations may result in misdemeanor violations and fines

• The FAQs confirm that CDPH guidance and directives apply to all public and private schools in California

• If a school is in a city with a local public health officer, the school is still considered to be part of the county for purposes of whether the school can reopen for in person instruction based on the county being off of the state monitoring list for at least 14 days.

• Teachers, support staff, and administrators are able to return to work physically without students on site, provided that they engage in physical distancing and wear face coverings.  The CDPH states that School administrators should also consider precautions outlined in the guidance on office workspaces (PDF).  It is important to note that local jurisdictions may impose additional requirements and restrictions.

• Local health officers are not required to approve particular instructional models, but schools should work closely with public health officers to ensure that in-person instruction is conducted in a safe manner consistent with state and local public health guidance.

• Schools must comply with orders and guidance issued by the California Department of Public Health and relevant local public health departments.

Testing

• School staff should be tested, including teachers, paraprofessionals, cafeteria workers, janitors, bus drivers, or any other school employee that may have contact with students or other staff, consistent with Framework for K-12 Schools in California. Schools should ensure that staff are tested periodically by their primary care provider or by referring teachers to a community testing site, as testing capacity permits and as practicable. Examples of recommended frequency include all staff being tested over 2 months, where 25% of staff are tested every 2 weeks, or 50% every month to rotate which staff members are tested over time.

Symptom Checks

• CDPH recommends daily visual wellness and symptoms checks prior to individuals entering campus. These checks can happen in a variety of ways, including: As the individuals enters the building or during morning homeroom. Students can be asked about their symptoms or can complete a short checklist of symptoms and hand it in. Follow-up to those checklists should occur whenever symptoms of COVID-19 are identified.

• Schools should maintain communication systems that allow staff and families to self-report symptoms and receive prompt notifications of exposures and closures, while maintaining confidentiality, as required by state law related to privacy of educational records and other privacy laws. In addition, local public health departments will notify the school administration if a case and contact investigation reveals exposure at the school site.

Face Coverings

• CDPH recommends face masks (or face shields for very young children) at age 2 or older, so that those who cannot manage masks can nonetheless be protected. CDPH guidance requires all children in 3^rd grade or later to wear masks. CDPH states: “Increasing evidence suggests wearing masks or face coverings can significantly decrease COVID-19 disease transmission. Other countries’ experiences (e.g., China, Singapore) suggests that virtually all students can be taught to handle face coverings at that age.”

• Schools should review the CDPH Guidance for the Use of Face Coverings (PDF) and any applicable local health department guidance and incorporate face covering use for students and workers into their COVID-19 prevention plan.

• Schools should develop protocols to provide a face covering to students who inadvertently fail to bring a face covering to school to prevent unnecessary exclusions.

• If a student refuses to wear a face covering, the student must be excluded from on-campus instruction, unless they are exempt, until they are willing to wear a face covering.  Students excluded on this basis should be offered other educational opportunities through distance learning. Disposable paper masks are thinner and may be less effective, but may still be used as a face covering to meet the requirement.

• Face coverings are required on buses.  The guidance acknowledges that a full 6 feet of physical distancing may not be practicable on buses, therefore face coverings are essential.  Physical distancing should be maximized to the extent practicable.

• CPDH states that close contact for purposes of exposure to someone with COVID-19 is defined as contact within 6 feet for greater than 15 minutes without a face covering, but that CDPH is following the Centers for Disease Control guidance on close contact.  The CDC guidance on close contact states that the determination of close contact should be made irrespective of whether the person with COVID-19 or the contact was wearing a mask. It is important to note that some counties have different definitions of close contact.  Los Angeles County’s K-12 Reopening Protocols state that an individual is considered exposed to COVID-19 if the individual was within 6 feet of an infected person for 15 or more minutes, even if a non-medical face covering was worn.

Elementary School Waiver Process

• The waivers only apply to in-person instruction for grades TK-6.

• The CDPH guidance provides that both public and private schools in counties on the County Monitoring List may request a waiver to conduct in-person instruction in elementary schools for grades TK-6.  The private school-equivalent of a superintendent (in most cases, the head of school) may request a waiver from the local health officer to conduct in-person elementary school instruction, in consultation with labor (as applicable), parent, and community organizations.  Local health officers, in turn, should review local community epidemiological data, consider other public health interventions, and consult with CDPH when considering a waiver request.

• The CDPH states that the waiver only applies to elementary schools because “[b]ased on the current best available scientific evidence, COVID-related risks in schools serving elementary-age students (grades TK-6) are lower than and different from the risks to staff and to students in schools serving older students. In particular, there appears to be lower risk of child-to-child or child-to-adult transmission in children under age 12, and the risk of infection and serious illness in elementary school children is particularly low.”

• Examples of community organizations that schools must consult with before considering a waiver include school-based non-profit organizations and local organizations that support student enrichment, recreation, after-school programs, health services, early childhood services or provide family support.

Extracurricular Activities

• The guidance does not permit team competition, but does allow for individual or team physical conditioning and training and physical education where physical distancing can be maintained and ideally outdoors. Indoor physical conditioning and training is allowed only in counties where gyms and fitness centers are allowed to operate indoors.  Please see the CDPH Youth Sports Guidance (PDF) for further details.

• The guidance does not allow for singing or playing instruments in schools. Activities where there is increased likelihood for transmission from contaminated exhaled droplets—such as singing, yelling, chanting, blowing wind instruments —are not permitted in schools at this time.

Preschools and Childcare Programs

• The CDPH guidance regarding the reopening of schools does not apply to child care programs

• Unless there is a local public health order stating otherwise, child care programs can remain open or re-open.

Closure Criteria

• The CDPH addressed how schools should calculate the 5% benchmark for closing schools. The benchmark will generally include the denominator of both students and staff, which should be tracked separately.  The CDPH guidance provides that each school site should designate a liaison – the school nurse, if applicable – to help coordinate monitoring and communications to local health officials, as well as the school community.  The liaison should monitor and report positive cases, and track whether the school approaches the 5% threshold during a 14-day period.

Other Exemptions

The CDPH states that more detailed guidance on conditions under which permissible in-person instruction and services for small sets of students, such as those provided pursuant to an individualized education program (IEP), is forthcoming.