March 13, 2020 Novel Coronavirus and Schools
KEEPING YOU INFORMED…
We are writing to share the most-updated information and best practice recommendations regarding the recent spread of the novel coronavirus (COVID-19) to the United States and our local communities.
Excluding Students or Staff from School Buildings and School Closures
On March 9, 2020, the NYS Department of Health (DOH) and the NYS Education Department (SED) issued a joint guidance (Joint Guidance) advising that if a student or staff member has tested positive for COVID-19, the individual cannot attend school. State and/or local health officials will contact the individual’s school or employer to discuss the student or staff member’s contacts within the school community when the individual was capable of spreading COVID-19 and to develop next steps for those persons. In addition, healthy students or staff who are taking care of, or who share a home with, an individual who has tested positive for COVID-19 cannot attend school and must follow the precautionary quarantine instructions provided by health officials. State or local health officials will determine when it is safe for these individuals to return to the school building.
Upon learning of a confirmed case of COVID-19 for a student or staff member who attended school prior to receiving the diagnosis, the school building must close for an initial 24 hours. During this 24-hour period, the State and/or local health officials will investigate the contacts that the individual may have had with other individuals and areas within the building. The health officials will then determine if the school must remain closed for an additional period of time, whether other precautions should be taken for specific rooms within the building or for specific individuals and the actions that should be taken in the event of a future positive COVID-19 diagnosis at the school.
During the initial 24 hours, the school is required to take immediate steps to clean and disinfect the building(s) where the student or staff member had contacts prior to testing positive for the virus in accordance with DOH guidelines. This cleaning and disinfecting must be completed before students return to the school.
The Joint Guidance provides that students and staff members who display flu-like symptoms at school should be isolated in a room separate from other people or, if that is not possible, kept a minimum of six feet away from others and should wear a surgical mask until they can be sent home in accordance with District procedures.
School officials may not exclude a healthy student who has been cleared to attend school by health officials. School officials may, however, require a healthy staff member to not report to work if the school has concerns about the staff member’s contracting of or exposure to COVID-19.
The Joint Guidance and other information provided by SED regarding COVID-19 is available at: http://www.p12.nysed.gov/sss/schoolhealth/schoolhealthservices/coronavirus.html.
Employee Pay and Benefits
Please contact us if you are considering requiring a healthy staff member to stay home so that we can discuss the staff member’s pay and other benefits during any forced administrative leave of absence.
Similarly, if you close one or more school buildings on a voluntary basis or at the direction or recommendation of local health officials, please call us to discuss the pay and other benefits for your staff members, which will vary depending upon the manner in which your staff members are employed by your district or BOCES and upon any applicable contractual or collective bargaining agreement provisions.
Special Education Programs and Services
On March 12, 2020, the United States Department of Education (DOE) issued guidance regarding providing special education services during an outbreak of COVID-19. The guidance provides that, if a school closes in order to slow or stop the spread of COVID-19 and does not provide educational services to the general student population, it would not be required to provide services to students with disabilities during the closure.
If a school continues to offer educational services to the general student population during a school closure, the school must ensure that students with disabilities have equal access to the same opportunities, including the provision of a free appropriate public education. The guidance provides that schools must ensure that, “to the greatest extent possible,” each student with a disability can be provided with the special education and related services identified in the student’s IEP or 504 Plan.
The DOE states that after the school reopens, the Committee on Special Education must make an individualized determination for each student regarding whether compensatory services are needed in accordance with applicable standards and requirements.
The DOE guidance is available at: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf
While schools remain open, we recommend that you remind your special education providers to take data on a regular basis in accordance with the specific requirements for each student. This will assist providers in determining whether a student suffers regression or a loss of certain skills or knowledge during any future school closure that may require a period of review after school reopens in order to reestablish the lost skill or knowledge.
Operating Child Nutrition Programs During School Closures
On March 12, 2020, SED issued guidance providing that School Food Authorities (SFA) and Summer Food Service Program (SFSP) sponsors may provide reimbursable meals to low-income children during school closures related to COVID-19. SFAs and SFSP sponsors interested in providing meals to children in areas affected by school closures must complete the application posted in the guidance and submit it to CNCOVID@nysed.gov for review and approval. Upon Child Nutrition’s approval of their application, schools may provide up to two meals per day per child through the SFSP or the Seamless Summer Option (SSO) of the National School Lunch Program. Meals may be provided and consumed at schools or other locations in the community or provided for consumption at home.
SED recommends that schools submit their applications in advance of a COVID-19-related closure. This guidance is available at: http://www.cn.nysed.gov/content/operating-cnp-when-schools-are-closed-due-covid-19.
The Joint Guidance recommends that schools review and update their all-hazard emergency or pandemic plans and procedures. Information regarding these plans is available at: http://www.p12.nysed.gov/sss/documents/ManagingEmergencies.pdf. Schools should also review, update and implement emergency operations plans in collaboration with local health departments and other relevant partners, with a focus on infectious disease outbreaks. The Joint Guidance provides the following resources for these plans: https://rems.ed.gov/docs/Guide_for_Developing_HQ_School_EOPs.pdf and the companion guide https://rems.ed.gov/docs/District_Guide_508C.pdf.
As of the date of this memorandum, the State has not issued any guidance or information regarding whether school closings would be excused from the State’s requirement for schools to be in session for 180 days or whether the use of virtual or remote instruction would be counted towards that requirement.
The DOH recommends that schools immediately suspend school-sponsored travel programs for all students and staff in highly impacted countries (as of March 9, this includes China, Iran, Italy, Japan and South Korea) and develop plans to suspend programs in any other country, regardless of whether that country is subject to a CDC travel alert.
Potential travel plans and field trips should be analyzed on a case-by-case basis in consultation with the local health department.
Board Meetings and the Open Meetings Law (OML)
This week, the New York State Committee on Open Government (COOG) issued guidance clarifying that the OML does not permit public bodies to obtain a “waiver” of the requirement that the public be permitted to attend public meetings in person. The State has not taken any action that would excuse this requirement for public school board meetings in the wake of COVID-19.
The COOG guidance also provides that the COOG staff “believe that judicial review of an alleged violation of the OML by a public body will take into consideration that body’s desire to protect public health while continuing to perform necessary government functions.” The COOG recommends that, if a public body wishes to limit in-person access to a public meeting in order to decrease a risk to public health, the public body should make the meeting public through technology and should also limit agenda items to time-sensitive matters that require immediate discussion or action. Limiting access to the meeting may include permitting only certain Board members and/or staff to attend the meeting in person and to live stream the meeting for the public and the rest of the school community to view in real time. The COOG guidance is not binding and we recommend that you speak with us prior to limiting access to a public meeting.
We have been advised that some parents in the State are keeping their healthy children home from school in order to prevent any potential exposure to COVID-19 at school. You should review your policies and practices with respect to what constitutes an excused or an unexcused absence and mark these students’ absences accordingly. Similarly, work should be sent home for students in accordance with applicable policies and practices, which may depend on whether the absence is excused.
If a healthy child is absent from school, however, because the child shares a home with an individual who has tested positive for COVID-19, we believe that the absence should be excused because the Joint Guidance requires these students to remain out of school until health officials have cleared them to return.
Confidentiality of Student and Staff Health Information
We wish to remind you to keep all health information regarding students and staff strictly confidential. If you become aware of a student or staff member with a confirmed or suspected case of COVID-19, you should ensure that only those school staff and administrators with a need to know are advised of the individual’s name. The identity of staff members should not be provided to anyone else within or outside of the District, with the exception of public health officials, medical personnel and any other individuals with a need to know in order to protect the health and safety of the school community. The same applies to members of students and staff members’ families and households.
With respect to student information, the DOE issued guidance on March 12, 2020 regarding the Family Educational Rights and Privacy Act (FERPA) and COVID-19 to assist schools in protecting the privacy of student records. The guidance provides that personally identifiable information in student records may be disclosed to public health officials and other appropriate individuals without consent from the student’s parent (or the student, if the student is 17 years of age or older) pursuant to the FERPA exception for emergencies where knowledge of the information is necessary to protect the health or safety of the student or others. School officials should work with public health officials to determine the information needed to address the situation and to whom this information should be disclosed.
The DOE’s FERPA guidance is available at:
If you have any questions regarding COVID-19 in schools, please contact Lauren Schnitzer or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020