Alachua school district joins fight against DOH rule

Alachua County Public Schools (ACPS) has joined five other school districts in asking a court to deem the recent Department of Health emergency rule invalid.

According to the petition filed by ACPS, and school boards from Miami-Dade, Leon, Duval, Orange and Broward counties, the goal is for the Florida Division of Administrative Hearings (DOAH) to rule that the Parental Opt-Out Requirements of the Department of Health Emergency Rule 64DER21-15 an invalid exercise of “delegated legislative authority” because the DOH has exceeded its grant of rulemaking authority.”

It also claims that Florida Gov. Ron DeSantis “cannot violate the separation of powers doctrine by delegating rulemaking authority to the DOH,” which the petition states he did when he issued Executive Order 21-175 entitled ““Ensuring Parents’ Freedom to Choose – Masks in Schools.”

The petition states that the executive order “makes repeated statements hostile to the mitigation strategy of requiring schoolchildren to wear masks—contrary to guidance from the Centers for Disease Control and Prevention (“CDC”), the American Academy of Pediatrics (“AAP”), and the overwhelming consensus of medical authorities that mask-wearing can significantly reduce the risk of transmitting COVID-19.”

The petition further states that the executive order denies the “well-recognized efficacy of mask-wearing” and speculates that mask wearing could harm children instead, all without accepted scientific studies to support the claims.

The petition argues that the Parents’ Bill of Rights adopted by Florida legislation on June 29, “does not say anything about masks. Moreover, parents’ rights under the statute are not unlimited.”

“The parental rights may be infringed by local governments if ‘such action is reasonable and necessary to achieve a compelling state interest and that such action is narrowly tailored and is not otherwise served by a less restrictive means,'” the petition states.

The petitioners are claiming that the parental opt-out requirements of the rule “accomplishes quite the opposite of the cited authority: forbidding mask mandates unless they include an unqualified right to opt-out, and requiring schools to allow COVID-exposed children (especially ones who do not have to wear a mask if their parents simply do not want them to), can only facilitate the spread of communicable diseases.”

“In that way, the Parental Opt-Out Requirements directly contradict the cited rulemaking authority, and also contradict the broader statutory requirement that the DOH ‘[i]mplement interventions that prevent or limit the impact or spread of diseases and health conditions,’” the filing says.

The petition outlines that school districts used scientific data and expert recommendations to adopt mitigation policies to control the spread of COVID-19 that are tailored to each district’s unique situation and that those strategies are “subject to change as conditions dictate.”

And because each district has offered exceptions to the face covering rules for students such as relief for medical conditions, those opt-out policies do not encroach on individual liberties.

The same goes for quarantine policies, the petition states: “The Petitioners each have a quarantine policy or practice governing students who have come in direct contact with a person who has tested positive for COVID-19.”

The Sept. 22 DOH emergency rule signed by newly appointment Florida Surgeon General Dr. Joseph Ladapo states it “conforms to Executive Order Number 21 -175, which ordered the Florida Department of Health and the Florida Department of Education to ensure safety protocols for controlling the spread of COVID-19 in schools.”

The rule claims to have reviewed data that has not been released to the public, the petition states, pointing to the rule’s assertion that the “DOH also claimed to have observed ‘no meaningful difference in the number of COVID-19 cases in school aged children in counties where school districts have imposed mask mandates.'”

Attorneys for the petitioners made public records requests for the data referenced in the rule notice, but the “DOH refused to produce any records regarding the data, claiming the data was ‘confidential.'”

Contrary to the DOH emergency rule claim, a nationwide study of school districts released by the CDC concluded that counties without school mask requirements experienced larger increases in pediatric COVID-19 case rates after the start of school compared with counties that had school mask requirements.

The petition also questions the quarantine protocol in the new rule that states, “children who have had direct contact with a person that has tested positive for COVID-19, schools must allow parents to have the choice to allow the exposed student to attend school and school-sponsored activities, without restrictions or disparate treatment (or a requirement to wear a mask), so long as the student is asymptomatic.”

The petition further dissects the DOH rule stating that it lacks definitions and procedures to accommodate the rule’s demands.

“The DOH Rule does not define mask, facial covering, ‘sick,’ or ‘symptomatic.’ It also does not indicate who has the authority to determine whether a student is symptomatic, what those symptoms might be, or who decides whether those symptoms are attributable to COVID-19 (as opposed to a common cold or seasonal allergies). It also fails to establish a procedure for implementing parental opt-outs.”

The petitioners say that the DOH rule accomplishes the opposite of controlling the spread of COVID-19: “Forbidding mask mandates unless they include an unqualified right to opt-out, and requiring schools to allow COVID-exposed children (especially ones who do not have to wear a mask if their parents simply do not want them to), can only facilitate the spread of communicable diseases. In that way, the Parental Opt-Out Requirements directly contradict the cited rulemaking authority, and also contradict the broader statutory requirement that the DOH “[i]mplement interventions that prevent or limit the impact or spread of diseases and health conditions.”

Superintendents from petitioning schools will be addressing the Florida Board of Education this afternoon at 1 p.m. The proceedings can be observed on a conference call webcast.

According to the COVID-19 weekly situation report issued by the Florida Department of Health, Alachua County and three other schools filing the petition have the lowest new case positivity rates in Florida.

Florida’s average new case positivity rate is 6.5 percent as of the Sept. 30th report.

Alachua County is at 5.5 percent, Miami-Dade dropped to 3.7 percent, Leon County is 5.3 percent, Duval County is the highest of the five school district counties at 7.3 percent, Orange County is at 5.0 percent, and Broward County is at 5.5 percent.

According to the report, the overall state population that is vaccinated is at 71 percent with Alachua County at 69 percent of 12 and older fully vaccinated.

Children still have the highest positivity rates with those under 12 who are ineligible to receive a vaccine at 8 percent and ages 12 to 19 at 8.5 percent with 65 and older at 5.1 percent.

Alachua County attributes the low infection rates to a face mask mandate for indoor spaces that was put in place at the height of the surge of cases attributed to the delta variant in August. At the advice of medical experts at UF Health, ACPS responded to the surge and inability for children under 12 years old to receive the COVID-19 vaccine by also issuing a face covering rule.

New case positivity rates have steadily declined in Alachua County from 14.8 percent on Aug. 13 to 5.5 percent on Oct. 1.

Counties adjacent to Alachua that did not adopt mitigation efforts continue to have higher positivity rates, according to the FDOH report.

Levy County is at 12.7 percent, Gilchrist County is at 12.5 percent, Marion County is 9.1 percent, Dixie County is at 11.7 percent, Putnam County is at 8.5 and Columbia County is at 9.3.

On Tuesday, the School Board of Alachua County voted to start relaxing face mask rules for high school students starting Oct. 19 when parents can use the opt-out exemption.

But students in K-8th grades will continue to wear facial coverings unless they have a medical exemption.

The decision came after five medical experts including Dr. Michael Lauzardo, deputy director of the UF Emerging Pathogens Institute, told the SBAC that the numbers in the fight against COVID-19 were trending in the right direction, but, “It’s not time to let down our guard.”

Today, the makers of the Pfizer vaccine, BioNTech, officially submitted a request to the Food and Drug Administration for Emergency Use Authorization of its vaccine for children ages 5 to 12 years old.

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