New State Tracking System Changes Equation for K-12 School Reopening


Today (Friday, August 28), the California Department of Public Health (“CDPH”) issued a new 4-tier tracking system (identified as the “Blueprint for a Safer Economy”), which is designed to replace the County Monitoring List, effective immediately. (See here and here.) Under the new tracking system, schools in some counties that recently came off the County Monitoring List may not yet be able to reopen.

Under the new tracking system, counties are identified as falling into one of four tiers, with Tier 1 being the strictest. Schools in Tier 1 counties are generally barred from reopening for in-person instruction (certain exceptions, e.g. waivers, are discussed below).

Tier 1 applies if the daily new cases per 100,000 population exceeds 7, or if the testing positivity rate exceeds 8%, though other criteria may also be considered (e.g. “health equity measures”). Decisions regarding movement from one Tier to another will be made weekly, starting on September 8, 2020. Most counties are currently in Tier 1.  Schools can identify their county's current Tier at this link.

Once counties have been in a particular Tier for three weeks and fall below the levels which apply to the next Tier for 14 days, they move to the next lowest Tier. As a result, it appears counties initially assigned to Tier 1 will remain there for at least three weeks and can then move to Tier 2 only if they have met Tier 2 criteria for two consecutive weeks. There is an exception, however, for the initial weekly determination to be made on September 8, 2020. For that determination only, counties will receive retroactive credit for prior weeks. As a result, it is possible for a county in Tier 1 to move to Tier 2 on September 8, 2020.

The new guidance also states that schools may reopen for in-person instruction only if their county has been in Tier 2 status for at least two weeks. This seems to mean that schools in Tier 1 counties cannot reopen until they complete Tier 1, move to Tier 2 and remain in Tier 2 for two weeks prior to reopening.  This change seems likely to impact reopening plans for schools throughout the state. 

By way of example, Orange County – which recently came off the prior County Monitoring List and was potentially looking to have schools reopened shortly after Labor Day - is now in Tier 1. At the earliest, Orange County could move to Tier 2 on September 8, and, at the earliest, could complete two weeks in Tier 2 on September 22. In contrast, San Diego County is currently in Tier 2 and can reopen upon completing two weeks in that Tier. 

The new guidance does not change the existing elementary school waiver process, though such waivers are subject to local county health orders. Nor does this guidance change the rules which apply after a school has opened for in-person instruction (under those rules schools can generally remain open even if their county reverts to a higher Tier).

The new guidance also does not affect the separate CDPH guidance issued on August 25, 2020, which authorized limited in-person instruction. The new guidance specifically states: “Schools that are not authorized to reopen, including TK-6 schools that have not received a waiver, may provide structured, in-person supervision and services to students under the Guidance for Small Cohorts/Groups of Children and Youth,” which was issued on August 25, 2020. AALRR will be issuing an Alert shortly which addresses the August 25, 2020 guidance.

If you have questions regarding this alert, you can contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo

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