Legal Update Memo No. 52-2020 – Updated Framework for Re-opening (K-12)

Download pdf: 52-2020 – Updated Framework for Re-opening with attachments (CDC)

On Friday August 28, 2020, the Acting State Public Health Officer, Dr. Erica Pan, issued a Statewide Public Health Officer Order (“Order”) that provided an undated framework for re-opening activities in California (including schools).[1]  The updated Order was adopted due to the continued significant concern of community spread of COVID-19.  The framework for re-opening, referred to as “California’s Plan for Reducing COVID-19 and Adjusting Permitted Sector Activities to Keep Californians Healthy and Safe” is summarized in the “Blueprint for a Safer Economy” (“Blueprint”) on the California Department of Public Health (“CDPH”) website.[2]  Both the Order and Blueprint are attached to this Legal Update.  CDPH has updated its industry guidance to incorporate the Blueprint.[3]

The Order takes effect on August 31, 2020, and supersedes the July 13, 2020, State Public Health Officer Order and provides the legal authority for the implementation of the Blueprint.  Information from the Blueprint regarding schools is summarized below.

  • There are four colored tiers from most widespread to least widespread COVID-19 risk for each county:
    1. “Widespread” – purple and schools are closed for in-person instruction;
    2. “Substantial” – red and school are closed for in-person instruction, but schools can re-open for in-person instruction if the county remains in this tier for two weeks (14 calendar days);
    3. “Moderate” – orange and school can re-open for in-person instruction; and
    4. “Minimal” – yellow and school can re-open for in-person instruction.

  • Schools may re-open for in-person instruction based on equivalent criteria to the July 17, 2020, School Re-opening Framework previously announced.  That framework remains in effect except that Tier 1 is substituted for the previous County Data Monitoring List (which has equivalent criteria to Tier 1).
  • Schools in counties within Tier 1 are not permitted to re-open for in-person instruction, with an exception for waivers granted by local health departments for TK-6 grades.  So TK-6 waivers can still be requested as described in our Legal Update No. 46-2020.[4]
  • Schools that are not authorized to re-open, 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.  Please see our Legal Update No. 51-2020.[5]
  • Schools are eligible for re-opening fully for in-person instruction following California School Sector Specific Guidelines once the county is off Tier 1 for 14 days, which is similar to being off the County Data Monitoring List for at least 14 days.
  • Potential re-closure should follow the July 17, 2020 School Re-opening Framework.

General rules of the Tier Framework:

  • CDPH will assess indicators weekly and the first weekly assessment will be released on September 8, 2020;
  • A county will remain in a tier for a minimum of three weeks before being able to advance to a later tier;
  • A county can only move forward one tier at a time, even if metrics qualify for a more advanced tier;
  • If a county’s case rate and test positivity measure fall into two different tiers, the county will be assigned to the more restrictive tier; and
  • City local health jurisdiction (“LHJ”) data will be included in overall metrics, and city LHJs will be assigned the same tier as the surrounding county.

Counties will be assigned an initial step on August 28, 2020, through the following process:

  • Each county is assigned to a tier based on an adjusted case rate and test positivity from the prior two reporting periods and if a county’s case rate and test positivity measure fall into two different tiers, the county will be assigned the more restrictive tier;
  • This tier status will be effective on Monday, August 31, 2020;
  • If a county is initially assigned to Purple Tier 1 and has met the criteria for a less restrictive tier the prior week, the county only needs to meet the criteria for a less restrictive tier for one more week to move to the Red Tier 2; and
  • For the September 8, 2020, assignment, a county does not need to remain in the Purple Tier 1 for three weeks, but for all subsequent assessments, a county must remain in a tier for three weeks and meet the criteria to advance as described below.

For a county to advance:

  • A county must have been in the current tier for a minimum of three weeks, except as described in the “Initial step applied on August 28, 2020” section above;
  • A county must meet criteria for the next tier for both measures for the prior two consecutive weeks in order to progress to the next tier; and
  • In addition, the state will establish health equity measures on activities such as data collection, testing access, contact tracing, supportive isolation, and outreach that demonstrate a county’s ability to address the most impacted communities within a county, which may include additional measures addressing health outcomes such as case rates, hospitalizations and deaths that will be developed and tracked for improvement.

Some counties may be moved back to a lower tier depending on various factors:

  • During the weekly assessment, if a county’s adjusted case rate and/or test positivity has been within a more restrictive tier for two consecutive weekly periods, the county must revert to the more restrictive tier;
  • At any time, state and county public health officials may work together to determine targeted interventions or county wide modifications necessary to address impacted hospital capacity and drivers of disease transmission, as needed; and
  • Counties will have three days to implement any sector changes or closures unless extreme circumstances merit immediate action.

Please note that in addition to the various State-Wide CDPH guidance, County Local Health Officers (“LHOs”) may issue more restrictive guidance for a specific county.

Our office will continue to do our best to provide timely legal guidance to help schools understand and comply with the various directives issued to address COVID-19 issues.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/8-28-20_Order-Plan-Reducing-COVID19-Adjusting-Permitted-Sectors-Signed.pdf.

[2] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID19CountyMonitoringOverview.aspx.

[3] https://covid19.ca.gov/industry-guidance/.

[4] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Schools-FAQ.aspx.

[5] https://files.covid19.ca.gov/pdf/guidance-schools-cohort-FAQ.pdf.