What Schools Need to Know About the New CDPH Consolidated Guidance for K-12 Schools

On Thursday, January 14, 2021, the California Department of Public Health (CDPH) issued new guidance for K-12 schools, titled “COVID-19 and Reopening In-Person Instruction Framework and Public Health Guidance for K-12 Schools in California, 2020-2021 School Year.”  The K-12 School Guidance does not modify or supersede the Guidance Related to Cohorts for Children and Youth, but does supersede: (1) the COVID-19 Industry Guidance: Schools and School-Based Programs; (2) the COVID and Reopening In Person Framework for K-12 Schools in California, 2020-2021 School Year; (3) the Elementary Education Waiver process and the associated School Waiver Letter and Cover Form and Local Health Officer Waiver Notice Form; and (4) CPDH Schools Frequently Asked Questions.

The new guidance is a public health directive that applies to all public and private schools operating in California.  Schools must comply with orders and guidance issued by the CDPH and relevant local health departments.  Below is a more detailed explanation of some of the most significant updates and new requirements.

A. New K-12 Reopening Framework

Under the framework that was announced last May, elementary schools located in counties in the purple tier (widespread transmission) under the Blueprint for a Safer Economy could resume in person instruction (other than for limited services under the Cohorting Guidance) only if they apply for and are granted waivers that allow them to reopen.  Under the new framework, counties with adjusted case rates of less than 25 cases per 100,000 residents for at least five consecutive days are eligible to resume in person instruction for grades K-6 only.  The adjusted case rate is the 7-day average of daily COVID-19 cases per 100,000 residents with a 7-day lag, adjusted for number of tests performed.  Schools in the purple tier who meet this threshold to resume in person instruction may not reopen for grades 7-12.  Before a school can resume in-person instruction, the school must prepare a COVID-19 Safety Plan (CSP) and meet submission and posting requirements for the CSP (discussed further in Section B).

Schools located in counties that are not in the purple tier and have not yet reopened for in person instruction, may reopen for all K-12 grades after the county is out of the purple tier for at least five consecutive days, and the school has complied with CSP submission and posting requirements.

The new guidance defines what it means to have “reopened” or to “reopen” as a school that resumes or has resumed in person instruction for at least one grade level, including under a hybrid model.  Schools that are operating in person services only in a manner permitted under the Cohorting Guidance are not considered to have reopened.

This new procedure replaces the previous Elementary School Waiver process. Although schools that have previously reopened under a waiver may continue to operate under that waiver, they now also must follow the new CSP posting and submission requirements and comply with the updated guidance.

As was the case previously, schools that reopened when their respective county was in the red, orange, or yellow tier may remain open if the county they are located in later moves into the purple tier.  However, these schools will need to comply with the new CSP posting and submission requirements, and comply with the updated guidance.

The guidance also states that regardless of the county tier status, residential components of boarding schools are required to remain closed (with the exception of residential components of boarding schools that are currently operating with the permission of local health authorities, and those serving wards or dependents of juvenile courts).  The non-residential components of boarding schools are guided by the same reopening framework set forth above.

B.        COVID-19 Safety Plan (CSP) Requirements

1. CSP Publishing and Submission Requirements

Under the new guidance, schools that have already resumed in person instruction are required to create and post a written COVID-19 Safety Plan (CSP) to their website or homepage, or for schools that do not maintain websites, in another publically accessible manner, by February 1, 2021, in order to continue operating an in person instruction program. The requirements for this CSP are discussed in subsection 2, below.

The CSP submission and posting requirements for schools that have not yet reopened are different if the school is in a county in the purple tier, as opposed to a school in a county in a red, orange, or yellow tier.  These different requirements are discussed further in subsection 2 below.

2. Required Components of the CSP

The CSP has two components: (1) The Cal/OSHA COVID-19 Prevention Program; and (2) the COVID-19 School Guidance Checklist.  The Cal/OSHA Emergency Temporary Standards that went into effect on November 30, 2020, require a written COVID-19 Prevention Program (CPP).  In order to ease the burden of preparing the new CSP, the first component of the CSP is the CPP, which schools were required to have already prepared.  Liebert Cassidy Whitmore has created a template CPP for schools, which can be purchased.  Cal/OSHA has also made a template CPP available.

The second component of the CSP is the COVID-19 School Guidance Checklist, which is located on the Safe Schools for All Hub.  The COVID-19 School Guidance Checklist must be completed, posted online, and submitted as outlined below:

a.      Schools Located in Counties Within the Red, Orange, and Yellow Tiers

• For schools that have already reopened and are located in a county that is in the Yellow, Orange, or Red Tier, the school must post the CSP publicly on its website homepage by February 1, 2021.
• For those schools that have not reopened and are located in a county that has been in the Purple Tier, the county must be in the Red Tier for 5 consecutive days before the school may reopen.
  • For schools that have not reopened, the school must complete and post the CSP publicly on its website homepage for at least 5 days prior to providing in-person instruction.
  • While developing and prior to posting a CSP, it is strongly recommended that the School’s governing body (or equivalent) consult with labor, parent, and community organizations. 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.

b.      Schools Located in Counties Within the Purple Tier

• For schools that have already reopened and are located in a county that is in the Purple Tier, the school must post the CSP publicly on its website homepage by February 1, 2021.
• As noted above, schools serving grades K-6 may not reopen for in-person instruction in jurisdictions with an adjusted case rate of more than 25 cases per 100,000 population per day.
• Schools serving grades K-6 not already open, may reopen for in-person instruction if the school completes and posts a CSP to its website homepage and submits the CSP to their local health department and the State Safe Schools for All Team[1] and does not receive notification of a finding that the CSP is deficient within 7 business days of submission. Under these circumstances, schools serving grades K-6 may only reopen for their K-6 grade students, even if their school serves non-K-6 grade students (e.g., a 6-8 grade school).
  • While developing and prior to submitting a CSP, the school must consult with labor, parent, and community organizations. The COVID-19 School Guidance Checklist requires that the school provide evidence of consultation with labor, parent, and community organizations.
  • The school 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 school must describe the process by which it consulted with school staff.
  • The school must confirm publication of the CSP on the website.
  • The school must submit the CSP on behalf of all schools within their direct administrative authority, with site-specific precautions noted within the CSP to address considerations unique to specific school sites, as applicable.
  • If a group of private, faith-based, or charter schools within a single county are subject to the same governing authority (e.g., an archdiocese), the governing authority of the school may submit the CSP on behalf of those schools, but must address site-specific considerations consistent with the bullet above. Otherwise, independent, private, faith-based, or charter schools that are affiliated with a broader network should post and submit the CSP for each school.
  • Local health departments and the State Safe Schools for All Team have 7 business days to provide feedback to the school regarding deficiencies in the CSP.
  • The school may reopen on the eighth business day after submitting the CSP if the local health department and/or State Safe Schools for All Team do not provide notification that the CSP is unsafe within 7 business days of submission.
  • If the local health department and/or State Safe Schools for All Team identify any deficiencies during the 7-business-day review period, the school will receive feedback on what they need to improve in order to be able to reopen for in-person instruction.
  • After the local health department responds to feedback and re-submits the plan, the entity that identified the deficiency will have 7 business days to review revisions.
  • If the local health department has noted a deficiency in a submitted CSP and has required a response prior to opening for in-person instruction, the local health department must notify the State Safe Schools for All Team.
  • The school may reopen on eighth business day after submitting the revisions if the local health department and the State Safe Schools for All Team do not provide additional feedback.

While not required, the CDPH strongly encourages schools to post on their website, with the CSP, their detailed plans describing how they will meet the requirements outlined in the CSP.

C.       Additional Reopening Considerations

The updated guidance sets forth additional considerations, including that schools should continue to offer distance learning for students who request it, and that K-12 schools should implement a phased-in model as part of their reopening plan.  The phased in model may include shifting from distance learning to hybrid, gradually allowing only specified grades or a percentage of each grade to resume in person learning, beginning with the youngest and most disproportionately impacted students, or allowing a gradual number of students, at a specified capacity, per grade or school site.  The guidance does clarify that a school that reopens under a phased in model can continue a phased reopening if their county moves to the Purple Tier or to an adjusted case rate of more than 25 per 100,000 population per day.

The guidance reiterates that teachers, administrators, and support staff may return to work physically on campus even when the school has not resumed for in person instruction, if those on campus follow the school’s CSP.

D.     More New and Updated Guidance

The K-12 School Guidance identifies seven mitigation strategies in order of efficacy based on scientific research that will assist schools to reduce in-school transmission and provides specific, detailed guidance related to each of the seven mitigation strategies.  Those mitigation strategies include: (1) face coverings; (2) stable groups; (3) physical distancing; (4) adequate ventilation; (5) hand hygiene; (6) symptom and close contact exposure screening with exclusion from school for staff or students with symptoms or with confirmed closed contact; and (7) surveillance or screening testing.  The K-12 School Guidance contains detailed new or updated guidance related to these mitigation strategies, including the following:

1. Face Coverings

The K-12 School Guidance explains that the CDPH Guidance for the Use of Face Coverings, which was issued on November 16, 2020, applies to the school setting.  Accordingly, the K-12 School Guidance directs that all students and staff must wear face coverings unless the person is exempt from wearing a face covering as set forth in the CDPH Guidance for the Use of Face Coverings.  However, the CDPH recommends that staff who come into routine contact with others wear disposable 3-ply surgical masks, which are more effective than cloth face coverings, instead of face coverings.

Those eligible for face covering exemptions include: those under the age of 2, those with a medical or mental health condition or disability that would impede them from properly wearing or handling a face covering, those with a communication disability, or when it would inhibit communication with a person who is hearing impaired.  Individuals who have or who communicate with persons with communication disabilities can consider “wearing a clear mask or cloth mask with a clear panel when appropriate.”  Those exempted from wearing a face covering due to a medical or mental health condition or disability “must wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits.”  Moreover, staff may wear a face shield with a drape instead of a face covering if wearing a face covering cannot be used for pedagogical or developmental reasons (e.g., communicating or assisting young children or those with special needs), but the staff member must maintain physical distance from others while wearing the face shield with a drape and must wear a face covering or face mask when outside of the classroom.

Students must wear face coverings at all times, even when participating in sports (as tolerated) whether indoors or outdoors, except while eating meals or snacks, during naptime, or when the face covering needs to be replaced.  Additionally, schools must develop protocols to provide face coverings to those who forget to bring one to school, and must exclude students from campus if they are not exempt from wearing a face covering and refuse to wear one provided by the school.

The K-12 School Guidance notes that shared spaces used by persons not wearing face coverings are less safe for other individuals also in those shared spaces.  Therefore, K-12 School Guidance encourages schools to implement additional mitigation strategies, such as increasing the frequency of asymptomatic testing, establishing greater physical distancing, installing clear physical barriers, reducing the time present in shared spaces, and choosing outdoor or highly-ventilated indoor educational spaces if the school has individuals who will not be wearing face coverings while on campus.

2. Physical Distancing

Among the updates to the K-12 School Guidance is the requirement that student chairs must be at least 6 feet away from one another, except where 6 feet of distance is not possible after a good-faith effort has been made.  Schools that do not maintain 6 feet of distance between student chairs should be prepared to demonstrate their good faith effort, including an effort to consider all outdoor/indoor space options and hybrid learning models, to the local health department and/or State Safe Schools Team.  Further, under no circumstances should student chairs be less than 4 feet apart.  When 6 feet apart is not possible, schools are encouraged to increase ventilation and implement separation strategies, such as installing partitions between students or rearranging seating arrangements to minimize face-to-face contact.

3. New COVID-19 Testing Guidance

The K-12 School Guidance also includes new guidance for schools currently or considering implementing COVID-19 testing.  The CDPH provides that if schools decide to implement COVID-19 testing, it should be done in conjunction with the other recommended mitigation strategies rather than “a stand-alone approach to prevent in-school transmission.”  The K-12 School Guidance defines and explains various testing strategies, including:

• Symptomatic Testing: Testing used for individuals exhibiting symptoms of COVID-19 to facilitate their exclusion from campus until they have met return to school/work requirements.
• Response Testing: Testing used to identify positive COVID-19 cases once a positive case is identified in a stable group.
• Asymptomatic Testing: Periodic testing used for surveillance or screening purposes.

The K-12 School Guidance includes a comprehensive testing frequency chart for schools deciding to utilize response and/or asymptomatic testing based on whether the individual is a student or member of the staff and the tier currently applicable to the school.  The CDPH also issued separate guidance, titled “Testing Considerations for LEAS and School Communities,” which includes guidance, considerations, strategy, and resources for schools with regard to testing students and staff for COVID-19.

4. Impending Vaccination Guidance

The CDPH “strongly recommends that all persons eligible to receive COVID-19 vaccines receive them at the first opportunity,” but states that “people under 16 are not eligible for the vaccine since trials for that group are still underway.”  The CDPH indicated that it is preparing separate vaccine guidance for schools, which will be available in the future on the Safe Schools for All Hub.

5. New Sample Notifications

The K-12 School Guidance also includes three sample COVID-19 related notifications that schools may customize and send to parents/guardians, teachers, and/or staff members under certain circumstances, including the following:

• School Exposure to a Case Of COVID-19 Notification
• COVID-19 School Outbreak Notification
• School Closure Due to COVID-19 Notification

6. New COVID-19 Case Reporting Requirements

Effective immediately, the K-12 School Guidance requires every school, including private schools, to 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 within 10 days before they tested positive for COVID-19.  In this circumstance, schools must make this report by telephone within 24 hours from the time an individual within the school is first made aware of a new case and provide the following information:

• The full name, address, telephone number, and date of birth of the individual who tested positive;
• The date the individual tested positive, the school(s) at which the individual was present on-site within the 10 days preceding the positive test, and the date the individual was last on-site at any relevant school(s); and
• The full name, address, and telephone number of the person making the report.

This reporting requirement is in place until the directive is modified or rescinded and 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 AB 685 and Cal/OSHA COVID-19 Prevention Program (CPP).

7. New COVID-19 Status Reporting Requirements

Beginning January 25, 2021, the K-12 School Guidance requires every school, including private schools, to report the following information to the CDPH using a web form made available by the CDPH every other Monday (or the Tuesday immediately following, if the Monday is a state holiday):

• Whether in-person instruction is provided full-time, including whether provided for all grades served by the local educational agency or private school or only certain grade spans.
• Whether in-person instruction is provided only part-time (hybrid model), including whether provided for all grades served by the local educational agency or private school or only certain grade spans.
• Whether in-person instruction and services are provided only pursuant to the Guidance Related to Cohorts issued by the California Department of Public Health.
• Whether no in-person instruction and services are provided (distance learning only).

The CDPH intends to use this information to assist public health authorities to monitor locations where case transmission may occur and to rapidly respond to any confirmed cases; to focus necessary public health resources and support to schools; and to “accurately assess the impact of school reopening on COVID-19 and update operative public health guidance and directives as necessary.”  This reporting requirement is in place until the directive is modified or rescinded.

Note:

All Heads of School, administrators, members of leadership teams, and other school employees in similar positions are highly encouraged to read the K-12 School Guidance carefully as it contains many new requirements that take effect immediately or in the very near future.  Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions about this new CDPH guidance.