Cohorting Guidance Issued by California Department of Public Health


On August 25, 2020, the California Department of Public Health (CDPH) published “Guidance for Small Cohorts/Groups of Children and Youth” (“Cohorting Guidance”), which authorize local educational agencies (LEAs) to provide in-person services to small cohorts of children and in one-to-one models during pandemic-caused closures of general in-person instruction. The CDPH’s stated purpose is “[t]o provide guidance for necessary in-person child supervision and limited instruction, targeted support services, and facilitation of distance learning in small group environments for a specified subset of children and youth, and for those programs to understand the required health and safety practices” during the pandemic. In addition, Governor Newsom’s office released a corresponding FAQ document, “intended to supplement the Cohorting Guidance with responses to frequently asked questions specific to the provision of school-based targeted, specialized support.” (“Cohorting FAQ”).

The Cohorting Guidance appears to supplement the CDPH’s August 3, 2020 FAQ, which promised “[m]ore detailed guidance on conditions under which [it is] permissible [to provide] in-person instruction and services for small sets of students, such as those provided pursuant to an individualized education program (IEP),” even if mass in-person instruction remains prohibited.

The Cohorting Guidance “applies to groups of children and youth in controlled, supervised, and indoor environments operated by” LEAs; public schools; “organized and supervised care environments, i.e., ‘distance learning hubs’ ”; before and after school programs; and other providers.

The Cohorting Guidance states without particular explanation that “guidance and directives related to schools, child care, day camps, youth sports, and institutions of higher education are not superseded by this document and still apply to those specified settings.” Other guidance and directives related to schools, of course, include the CDPH’s July 17, 2020 “COVID-19 and Reopening In-Person Learning Framework for K-12 Schools in California, 2020-2021 School Year (“July 17 Framework”),” which states that “[i]f the [local health jurisdiction (“LHJ”)] has been on the monitoring list within the last 14 days, the school [located in that LHJ] must conduct distance learning only, until their LHJ has been off the monitoring list for at least 14 days.” The Cohorting FAQ makes clear, however, that “[t]he Cohorting Guidance applies to schools that cannot reopen for in person instruction pursuant to the July 17 Framework, including elementary schools in those [LHJs] that have not received an elementary school waiver through the local public health office.” Additionally, the Cohorting FAQ explains that unlike an LEA applying for a waiver under the July 17 Framework, an LEA looking to establish cohorts pursuant to the Cohorting Guidance should collaborate with, but is “not required to receive express approval from the local health department.”

The Cohorting Guidance then defines “cohort,” “supervising adult,” and “supervised care environment.” A “cohort” “is a stable group of no more than 14 children or youth and no more than two supervising adults in a supervised environment… .” Read together with the August 3 FAQ, the Cohorting Guidance implies that described providers may implement “child supervision and limited instruction, targeted support services, and facilitation of distance learning” to cohorts during school closure, if other indicated safety guidelines are followed.

For LEAs that contemplate opening programs for students with disabilities, the permissible number of adults is important to program planning. The Cohorting Guidance states that “[c]ohorts must be limited to no more than two supervising adults.” The Cohorting Guidance goes on to explain that “[o]ne-to-one specialized services” — occupational therapy services, speech and language services, and other medical, behavioral services, or educational support services as part of a “targeted intervention strategy” — “can be provided to a child or youth by a support service provider that is not part of the child or youth’s cohort.” That stated, the Cohorting FAQ explains these “additional supports and services must be done individually and cannot be done with other students.” While not specifically referenced, it appears one-to-one services (e.g., aide support) cannot be implemented in the supervised environment, within the physical presence of other cohort members. (Services must follow prescribed guidelines.  Thus, the design of programs for students with significant support needs will be challenged by the two-adult cap.

Moreover, the 14-children cap cannot be circumvented via revolving-door membership. In other words, the Cohorting Guidance does not allow more than 14 total children to participate in the cohort, mixing and matching attendance days (some children attending only certain days, and still others on other days), even if only 14 or fewer children are physically present in the program at any given time. The cohort must maintain a membership of 14 or fewer children, no matter how many children actually show up for participation in the program.

It appears that one site may host multiple cohorts, as long as “no two cohorts are in the same place at the same time.” The Cohorting FAQ explains that the number of cohorts an LEA can have will depend on the school’s enrollment size and available building capacity. LEAs should work in collaboration with their local health departments to determine the number of cohorts that can be safely established to avoid interactions between cohorts. The FAQ provides a general guideline to “not exceed 25% of the school’s enrollment size or available building capacity,” given the need for physical distancing and separation of cohorts. Given the layout of K-12 schools, the FAQs suggest maintaining separation between cohorts by assigning each cohort to its own classroom. However, use of partitions, outside space, or “other dedicated space may be used when it allows for separation from other cohorts and adequate physical distancing.”

Interaction (presumably during program hours) by children and adults with individuals outside of cohorts is prohibited. This in mind, supervising adults from multiple cohorts may jointly participate in staff meetings if “conducted remotely, outdoors, or in a large room” with safety measures in place.

The Cohorting Guidance iterates and promotes commonly known safety measures (e.g. face coverings), but notes that “[p]hysical distancing between young children in the same cohort should be balanced with developmental and socio‐emotional needs of this age group.” This appears to mean that children may play together without strict adherence to social distancing measures.

The Legislature has amended Senate Bill 820 (which has not yet been enacted) to retroactively end Senate Bill 117, Section 8’s minimal special-education timeline tolling, going back to July 1, 2020. Section 8 tolls, for purpose of compliance monitoring, timelines for assessment plans (Education Code sections 56043(a) and 56321(a)) as well as making pupil records available and transmitting a pupil file by a former LEA (Education Code sections 56043(n) and (o), and 5 C.C.R. § 3024). It appears the rationale for the retroactive sunset of the tolling contemplates that timelines will remain inert during summertime anyway, and that those timelines will resume with the new school year. SB 820 is not yet law, but it — along with this inexplicably and unnecessarily punitive amendment — is expected to be enacted soon.

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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