Education Law Notes  

To the shock of no one, the guidance concerning the use of in-person, “hybrid” and remote learning models in the Connecticut schools during the ongoing COVID-19 pandemic continues to evolve.  This is not completely surprising.  After all, the factors to be used by Connecticut schools in assessing the degree of in-person learning (and whether to go with a more “remote” model) cannot be static, but rather are subject to evolution in light of 1) the practical experiences of schools on the ground, and 2) the increase in knowledge about the nature of COVID-19 and its spread.   

Back on July 30, 2020, the State Department of Education (SDE) released its “Interim Guidance for Decision-Making Regarding the Use of In-Person, Hybrid (Blended), or Remote Learning Models in Connecticut Schools during COVID-19.” https://schoollaw.pullcomblog.com/archives/reopening-connecticuts-schools-objectively-but-with-flexibility-the-latest-state-guidance/  This guidance (also known as “Addendum 4”) contained specific metrices and tiers from the SDE and the State Department of Public Health (DPH) to guide decisions by schools as to whether to have a full time/in-person learning model, a hybrid model featuring both in-person and remote learning, or a purely remote/distance learning model, based upon infection levels.  This document also provided flexibility for schools in choosing the learning model (with the exception of discouragement if not prohibition of schools using a fully remote model during times of “low” or even “moderate” risk of spread of the virus).    

On October 22, 2020, the SDE and DPH issued an updated “Addendum 4.”  https://portal.ct.gov/-/media/SDE/COVID-19/Addendum-4-Interim-Guidance-for-DecisionMaking-Regarding-the-Use-of-InPerson-Hybrid-Blended-or-Remot.pdf  What are the changes in this latest version of the guidance? 

1. First of all, the State had previously indicated that the data regarding the level of spread (and metrics) would be updated on a weekly basis and be based strictly upon county wide and statewide data, since town by town data was deemed too volatile.  The new guidance no longer relies upon a county-wide assessment but considers the rates of spread on a town by town basis.  The DPH will now provide weekly analysis of the average daily town metric but based upon the previous complete 14-day case reporting period, “in order to smooth datapoints over time for case numbers that can be highly variable.”  The switch to a more town centric approach (albeit with a larger sampling) is understandable, since the DPH has developed a “Town Level COVID-19 Response Framework” that is supposed to guide decision making in various realms (including actions for individual residents, schools, houses of worship, community organizations, and municipal leaders and health directors).
    
2. At the same time, while noting that the Town Level framework and Addendum 4 use many of the same data metrics to determine a course of action, the SDE states that there are unique circumstances in the schools, where there is a “highly controlled” setting with more oversight and compliance with mitigation strategies.   As such, while a “red alert” for a specific town is cause for concern and should trigger an assessment by that town’s schools of the effectiveness of their current mitigation strategies and the possibility of changing learning models, the SDE notes that “the level of community spread that would prompt action in the non-community settings is not necessarily indicative  of a need for schools to suspend in-person learning.”  The SDE further notes that in light of the “high-level” of work by the schools in planning for the reopening, the experience in Connecticut so far is that transmission of the virus has been rare inside of school buildings even where there are elevated transmission rates in the community.
3. As such, while the “former” Addendum 4 guidance brought to us specific tiers and metrices objectively broken down between “low” infection levels in communities (which favor “more” in-person learning), “moderate” levels (which favor moving to a hybrid learning model), and “high” levels (which favor moving to a remote learning model), the SDE now views these tiers not as cliffs requiring definite action but  more as a gradation or sliding scale.  In other words, even if a certain level of spread is reached (i.e., the red/formerly labeled “high” level), there is not an automatic reversion to full remote learning.  Rather, the school should view these elevated spread numbers in the context of other factors in assessing whether to offer “less in-person learning.”  In addition to factors listed in the prior guidance (physical spacing issues, HVAC functionality and ventilation, compliance with self-screening, cohorting, clearing and disinfecting), the updated guidance now lists as a factor “person-density.”  Such person-density will consider not only the number of students in a building at any given time, but also the effect of density on the ability to implement mitigation strategies; the SDE notes that person-density may be reduced through programmed hybrid scheduling or as a result of students voluntarily “opting in” to remote learning.  The SDE guidance states that the school decision making should be made in consultation with local public health officials and the school’s own medical staff/advisors, in consideration of the local conditions, updated infection data, the school’s ongoing mitigation strategies and changes to the person-density in the school building(s).  It may be that a hybrid model (as opposed to a full remote model) is sufficient to reduce person-density to acceptable levels for mitigating/preventing spread of the virus in the schools.        

So, what does this all mean?  From these eyes, it appears that while it still offers flexibility and deference to local/school decisions, the SDE has a preference against switching to a fully remote learning model.  The SDE is retaining the provision of the prior version of Addendum 4 that required schoolsseeking to utilize a full remote learning model during times of either “low” or “moderate” risk to obtain the approval of the SDE, DPH and the State Board of Education.  More importantly, the SDE via the updated Addendum 4 is now almost saying that the schools may be the safest place for students to be, as the schools (with their reopening plans, mitigation strategies, adherence to contact tracing and isolating “close contacts” to persons with COVID-19) have been effective in controlling spread of the virus in the schools even when there is a spread in the community. At the very least, the tone of the updated guidance would appear to strongly favor as much in-person learning as possible, regardless of upticks in spread and cases involving members of the school community.  Regardless, we continue to believe that any decisions that schools make should be made in consultation with local health officials, along with due consideration of the practicality of a specific learning model in light of local conditions and facilities and the school’s own needs (regardless of anyone else’s preferences).  

Events and conditions (and state and federal guidance) remain fluid, affecting a variety of education and labor/employment issues. Pullman & Comley has policy templates and other useful resources available to assist Connecticut schools in considering and implementing their options and navigating the web of executive orders, laws, regulations, and other state and federal guidance related to COVID-19.  Please contact any of our School Law attorneys for assistance.