The Director of the Office of Head Start (OHS), U.S. Department of Health and Human Services (HHS), recently shared a letter with the Head Start community an update that will revise the Head Start Program Performance Standards (HSPPS) to include additional health and safety requirements.
On November 10, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its COVID-19 Guidance for Operating Early Childhood Education (ECE) and Child Care Programs. The CDC stressed that vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic, and promoting vaccination among all eligible individuals can help ECE programs protect staff and children in their care, as well as their families. It acknowledges that most ECE programs serve children in an age group that is not yet eligible for vaccination and emphasizes using multiple prevention strategies together to protect both children and adults in ECE care.
Consistent with this messaging, HSPPS now recommends universal indoor masking in ECE programs for everyone ages two and older. The standards will also require vaccination against COVID-19 for all staff, contractors, and volunteers working with children be fully vaccinated (two doses for Pfizer or Moderna and one dose of Janssen) by January 31, 2022. Anyone granted a vaccine exemption will be required to undergo weekly testing.
As part of President Biden’s Path Out of the Pandemic, an interim final rule with comment (IFC) was published on November 30, 2021. With the release of the new HSPPS, the Office of Head Start hosted a webinar outlining these new requirements and published Universal Masking and COVID-19 Vaccine Requirements FAQs. Both the webinar and the FAQ were released on November 29, and the webinar is available on demand through the OHS website.
Since these new requirements will be a federal mandate, districts with head start programs may wish to begin informing staff and/or parents of the projected procedures.
As COVID-19 continues to affect education, school district decisions about mask policies and exemptions have resulted in lawsuits about the rights of students with disabilities.
The claims arise under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students have conditions that make it particularly dangerous for them to be exposed to and contract COVID-19, alleging that their rights were violated by state laws, executive orders by Governors banning mandatory masking, and/or individual school board decisions.
The ADA affords that persons with disabilities have the right to reasonable accommodations that provide them with meaningful access to public programs, services, and activities. When a board of education fails to make reasonable modifications to enable access to its facilities, programs, and services, a person with disabilities may bring a “failure to accommodate” claim. A failure-to-accommodate claim asserts that the defendant “…could have reasonably accommodated a person with a disability, but refused to do so.” (S.B. v. Lee, Dist. Ct., E.D. TN) 2021 WL4755619)
Four cases with similar ADA and 504 claims have been decided in three federal circuits, including the 6th Circuit, with varying results. On October 12, in a case originating out of Tennessee, the Court of Appeals outlined the ADA’s “failure to accommodate” claim, stating “This case requires the Court to consider the ADA’s mandate of social integration in an unprecedented context by addressing how a board of education must reasonably accommodate medically-compromised students when COVID-19 is now part of daily life inside their schools’ walls.”
The court granted a temporary injunction to the students with disabilities against the Tennessee Governor’s order that all parents may opt-out of a mask requirement and the school board’s decision to allow optional masking. The school district was ordered to adopt the universal masking policy it had in 2020-21 as a reasonable accommodation for the students. It also required the school district to report any mask exemptions granted, including the specific reasons for those exemptions.
The 6th Circuit also determined that the plaintiffs did not need to exhaust their remedies under IDEA. Recently, the court issued an additional ruling on the school district’s motion to amend that judgment, because it alleged students and staff were refusing to wear masks. The court denied that motion, noting the district had not offered sufficient evidence or supporting legal arguments.
The 8th and 11th Circuits also considered similar claims by students with disabilities. In the 11th Circuit, which includes Florida, two different federal courts declined to issue injunctions on claims under the ADA and Section 504. In one decision issued on September 13, the court held that the student’s individual health claims and accommodations required exhaustion of their administrative remedies under IDEA. (Hayes v. DeSantis [Dist. Ct., S.D. FL] Case 1:21-cv-22863-KMM, Spt. 15, 2021)
In a separate 11th Circuit case, an ADA and Section 504 challenge to a school board’s decision to end most COVID-19 mitigation measures, the court refused to issue an injunction, finding that virtual school was a reasonable accommodation available to all students and that the preferred accommodation need not be provided.
In the 8th Circuit, a challenge to the Iowa Governor’s order banning school districts from universal masking decisions alleged that the ADA and Section 504 preempted the Governor’s order. The federal district court did issue an injunction preventing the order from taking effect, ruling that universal masking is a reasonable accommodation. The court also held that the state ban does violate ADA and 504 by excluding disabled students and denying them the benefits of public schools’ programs, services, and activities to which they are entitled.
What this means for your District:
Case law on masking guidelines is still developing. The 6th Circuit decision, while arising in Tennessee, should inform decision-making in our federal circuit. These cases are all temporary restraining orders, meaning there will be further proceedings with evidentiary hearings which may alter the outcomes, settle or otherwise affect the rulings. Stay tuned and contact one of our attorneys if you have questions.