“We could be called alarmists, but I would rather be called an
alarmist than be called a fool for being underprepared.”
--Kenneth Alexander, Pediatric Infectious Disease Specialist at the
University of Chicago Hospitals (Chicago Tribune, 9/08, 09)
The “signs of the times” make it clear that there is wide spread fear of the world-wide H1N1 pandemic. This fear is quite likely to generate legal disputes, once the flu season arrives. Thus, now is an excellent time for you to consider your district’s situation with regard to ensuring that your district is taking advantage of a wide array of guidance offered by the Illinois State Board of Education, the federal government, and within your own Board Policies and procedures, among other resources. Below, we discuss these resources, and discuss how you can provide quick, correct responses to parental concerns relating to this pandemic or any future pandemic. By taking advantage of the available resources, you can minimize the chance that your district will be the “target district” for a test case involving H1N1.
Attached hereto, we provide copies of a number of resources which can assist you in your preparations in dealing with the upcoming flu season. Below, we highlight certain aspects of these materials, in order to draw your attention to what you can do in order to minimize the risk of a legal disruption affecting your school district.
I. STATE RESOURCES
Both the Illinois Department of Public Health (IDPH) and the Illinois State Board of Education (ISBE) maintain information on their respective websites regarding the H1N1 virus. While both websites should be consulted on a regular basis for updated information, it should be noted that both websites link to a large number of federal resources, which are discussed below. Herein, we will discuss certain state resources that should be consulted.
A.On the ISBE website, there is a document entitled Potential Consequences of Closing a District for School Due to H1N1. This short document (a copy of which is enclosed herein) should be read and applied to your school district. The article notes the change in Illinois law relating to a partial school closure, and discusses the effect of the new Public Act on attendance rules.
B.Next, on August 18, 2009 ISBE issued a letter to all Illinois superintendents and principals, alerting administrators to review Web-based School Dismissal Monitoring System for the 2009-2010 school year. The letter, a copy of which is enclosed herein, provides guidance as to the implementation of the monitoring program. The monitoring system itself is discussed below in the section discussing federal resources.
C.Administrators should be aware that on August 18, 2009 ISBE sent a letter to parents of school-aged children, urging them to vaccinate their children. In the event your district is asked for information regarding vaccination, a copy of this letter, which is enclosed herein, can be given to parents inquiring on the issue.
D.The ISBE website also has several sample “school closure” notices, which you can consider if and when it becomes necessary to close a district facility. A representative letter is enclosed with these materials.
E.Finally, every school district should implement a set of procedures substantially similar to those prepared by ISBE and IDPH entitled “Management of Chronic Infectious Diseases in Schoolchildren”, which sets forth a detailed set of appropriate procedures for limiting student exposure to the flu. This document can be found at isbe.state.il.us/SPEC-ED/pdfs/chronic_diseases.pdf
II. FEDERAL GOVERNMENT DIRECTIVES RELATING TO H1N1
As indicated above, the federal government and especially the Center for Disease Control and Prevention, offers a large quantity of current guidance to school districts as to how to prepare for and address H1N1 outbreaks. Several of these documents can be found at the “Flu.gov” website, which serves as a government clearinghouse for information concerning H1N1. Therein, the Centers for Disease Control and Prevention (hereinafter, the “CDC”) provides four (4) different explanatory guides, presented in differing formats, regarding preparations for the 2009-2010 school year. These include the following documents, all of which are enclosed herein:
1.CDC Guidance for State and Local Public Health Officials and School Administrators for School (K-12) Responses to Influenza during the 2009-2010 School Year
2.Technical Report for State and Local Public Health Officials and School Administrators Regarding Guidance for School (K-12) Responses to Influenza during the 2009-2010 School Year
3.Preparing for the Flu During the 2009-2010 School Year – Questions and Answers for Schools
4.Pandemic Flu—A Planning Guide for Educators
All of these documents should be read by an administrator designated within each school district, so that (a) the administration is aware of all current general federal guidance on responding to H1N1; and (b) so as to later be able to represent to any adjudicatory body that your district has taken active steps to remain knowledgeable about communicable diseases and appropriate responses to communicable diseases. The CDC also has other useful documentation on its website, which should be read and implemented.
A.The aforementioned Web-based School Dismissal Reporting Form can be found on the CDC website. This form, a copy of which is included with these materials, is a very straight forward form which will allow your district to cooperate with the federal government in tracking school district closures across the country.
B.CDC provides a web page entitled Preparing for the Flu: A Communication Tool Kit for Schools. This web page includes such things as Fact Sheets to inform teachers and parents regarding the H1N1 virus, as well as posters to help students recognize that they are sick, and template letters for schools to send to parents. A copy of this web page is also enclosed with these materials.
The United States Department of Education has promulgated certain documentation which should be required reading in order to establish your district’s due diligence in implementing federal guidance regarding H1N1. First, the Department of Education has promulgated a letter dated June 11, 2009 to all educators, advising educators as to the Department of Education’s recommendations for responding to the upcoming fall H1N1 wave. A copy of the Department’s correspondence is included with these materials.
C.The Department of Education has issued a document entitled Preparing for the Flu: The Department of Education Recommendations to Ensure the Continuity of Learning for Schools (K-12) During Extended Student Absence or School Dismissal. This document, while potentially useful for all students, can be especially useful with regard to situations where parents request “504 Plans” for their students because of an extended student absence due to H1N1.
D.The Department of Education has also issued a document entitled Guidance on Flexibility and Waivers for SEAs, LEAs, Post-Secondary Institutions, and other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus). In general, this document, which is enclosed, discusses waivers (and other forms of relief) from federal education requirements that may provide school districts with the operational flexibility necessary to effectively close schools and otherwise respond to the administrative challenges presented by an H1N1 outbreak.
E.The Department of Health and Human Services, in cooperation with the CDC, has developed a checklist entitled “School District (K-12) Pandemic Influenza Planning Checklist”. The checklist, a copy of which is enclosed, is an indispensable guide for your district to complete in order to verify that your district is complying with the above-referenced guidance documents.
III. LOCAL RULES
A. DISTRICT POLICIES AND PROCEDURES
In addition to the diligent implementation of all federal and state guidance regarding the H1N1 pandemic, your district will want to diligently implement its own flu and pandemic policies and procedures. In doing so, your district can avoid certain “traps for the unwary” by following a few simple procedures.
1.The Illinois Association of School Boards operates the Policy Reference Educational Subscription Service (PRESS service), which provides an excellent set of policies and procedures to be followed with regard to both infectious diseases and pandemics, such as the H1N1 pandemic. These policies are satisfactory in their present form and (subject to a review of the individualized needs of your district) can often be adopted without changes.
2.The PRESS service also promulgates related Administrative Procedures which, while useful, can often be helpfully nuanced in order to meet with your district’s specific needs.
The PRESS Administrative Procedure entitled Managing Students with Communicable or Infectious Disease contemplates that each district applying the Procedure shall have a “Communicable and Chronic Infectious Disease Review Team” (hereinafter “CCIDRT”). The CCIDRT is to be composed of the district’s “medical advisor”, a school nurse, the building principal, the superintendent, and other individuals with an expertise relevant to any particular medical situation.
Details about the CCIDRT are also set forth in the PRESS Administrative Procedure regarding “Superintendent Committees”. Therein, it is stated that the “Review Team monitors those employees and students who have a communicable and chronic infectious disease”. The Administrative Procedure then goes on to itemize various aspects and responsibilities of the CCIDRT.
a.However, the PRESS Administrative Procedures do not specify when or how often the CCIDRT is to meet. With the upcoming flu season, it may be perceived as impracticable for your district to be consulting its “medical advisor” with regard to each and every instance or suspected instance of influenza.
b.To the extent that it is not practicable for your district to implement these Administrative Procedures as drafted by the PRESS service, your district should give serious consideration to modifying the Administrative Procedures to fit your district’s needs. Depending on the circumstances of each district, this can be accomplished by modifying the definition of the CCIDRT and/or modifying the specific responsibilities of various CCIDRT participants in the event of a communicable disease outbreak.
In the event of a dispute regarding
whether or not your district properly handled a matter relating to
H1N1, it will be important for your district to be able to demonstrate
that it followed its own rules and administrative procedures.
Therefore, each relevant district policy and procedure should be
reviewed in order to determine whether or not they can be effectively
implemented as written.
B. 504 PLANS
As it is not uncommon for students suffering from the flu to be out of school for a week or more, school districts will need to be prepared to implement the US Department of Education’s “Preparing for the Flu: Department of Education Recommendations to Ensure the Continuity of Learning for Schools (K-12) During Extended Student Absence or School Dismissal.” Although they are called “Recommendations,” a parent may challenge a school district’s failure to implement these guidelines in order to ensure that a sick student keeps up with his or her peers.
Moreover, the guidelines provide a starting point for developing a
“504 Plan” as a means of accommodating a student’s “disability”
resulting from suffering from the flu. It should be noted that school
districts shoulder consider preparing a 504 plan for any student whose
parents request that such a plan be prepared. The actual length of time
the student is out of school due to the flu will not eliminate your
district’s obligation to endeavor to reasonably accommodate the
disabling condition caused by the flu.
C. STUDENTS WITH IEPs
Generally, if a student with an IEP is absent from school for less than two consecutive weeks, such a student should be treated like every other similarly situated student. However, if a student is absent for two or more consecutive weeks of school, the Illinois Administrative Code sets forth the following additional requirements:
“…when an eligible student has a medical condition that will cause an absence for two or more consecutive weeks of school or ongoing intermittent absences, the IEP Team for that child shall consider the need for home or hospital services. Such consideration shall be based upon a written statement from a physician licensed to practice medicine in all its branches which specifies: (1) the child’s condition; (2) the impact on the child’s ability to participate in education…; and (3) the anticipated duration or nature of the child’s absence from school.” 23 ILAC 226.300
Given this regulatory requirement, if the administration has any reason to believe that a student with an IEP may be absent for more than two consecutive weeks, the IEP Team should be summoned to meet before the conclusion of a two consecutive week absence, in order to consider the matter set forth in the aforesaid regulation.
IV. CONCLUSION
The foregoing materials, Board policies, and procedures can help your district address both individual student exclusion and facility closures in a manner that is least likely to generate a dispute with the potential for litigation. It should be noted, however, that these resources are regularly updated. The most recent versions of these materials should always be consulted as you prepare for the fall flu season. We hope the foregoing review of these materials is of assistance to your district.
Copyright © 2009 Zukowski Law Offices
While the information herein contained is considered accurate, it is not legal advice and should not be construed as such. Please seek a legal opinion from a qualified attorney based upon the facts of your specific matter.