School districts have raised a number of questions regarding the executive order issued by the Ohio Department of Health (“ODH”) on September 3, 2020, which identifies how and when school districts must report COVID-19 positive cases to parents and the community (“Order”). This blog addresses commonly raised questions related to providing parent notices.
Generally, the Order requires school districts to notify their local health department and certain parents/guardians within 24 hours of “becoming aware” that a student, teacher, staff member, or coach has tested positive or has been diagnosed with COVID-19 (“COVID-19+ Person”). While the Order does not specify when a school district “becomes aware” of a positive test or diagnosis, each school district must develop a system for parents and staff to make COVID-19 reports and must identify a COVID-19 Coordinator to facilitate reporting of case information.
The Order requires school districts to send two types of parent/guardian notices (“Parent Notices”) within 24 hours of becoming aware of student exposure to a COVID-19+ Person:
- Classroom/Activity Notice. A written notification must be sent to parents/guardians of all students who share a classroom space with the COVID-19+ Person or have participated in a school activity during the “infectious period.” As the “infectious period” is not defined, school districts should consult with their local health department regarding how this period should be determined.
- Schoolwide Notice. A schoolwide written notification must be sent to parents/guardians of students “at the school building” of the COVID-19+ Person. The Order provides that “schoolwide notification may be made through an email or established website.” A notification must be provided for each case, but may be consolidated as necessary.
The Order authorizes districts to use notification template letters developed by ODH. These template letters are available here under the “Schools” tab.
Parent Notices must indicate a positive case and must “include as much information as possible without disclosing protected health information.” Significantly, the Order does not require – and the ODH’s Parent Notice template letters do not include – the name of the COVID-19+ Person or his/her affiliation with the school (e.g., the letters do not say “a second-grade teacher tested positive”). Rather, the Parent Notice template letters generally indicate that “someone,” or a “student or staff person,” tested positive.
FERPA and the Health/Safety Emergency Exception
There has been some question regarding whether providing Parent Notices would violate FERPA, as the notices may contain personally identifiable information which cannot otherwise be released without prior written consent. Under FERPA, information is considered personally identifiable if the information alone, or in combination with other factors, allows someone in the school community to identify the student(s). A March 2020 Q&A issued by the U.S. Department of Education, related to COVID-19, suggests that personally identifiable information may be shared if the “Health or Safety Emergency Exception” applies. Under this exception, a school district may disclose, without prior written consent, personally identifiable information from student records to “appropriate parties […] in connection with an emergency, if knowledge of that information is necessary to protect the health or safety of a student or other individuals.” 34 C.F.R. 99.36.
In determining whether a health or safety emergency exists, a school district may consider “the totality of circumstances.” The Department of Education will not substitute its judgement for that of the school district, provided that, based on information available at the time, the school district had a rational basis for determining that an emergency existed. ODH’s Order is mandating that notices be provided to parents “to prevent and minimize the spread of COVID-19[…].”
Districts are cautioned, however, that the Health or Safety Emergency Exception only authorizes the disclosure of personally identifiable information to “appropriate parties.” While the Q&A reaffirmed that parents/guardians may be appropriate parties, the Health or Safety Emergency Exception does not allow unrestricted sharing of information to the general public or the media. Therefore, if a school district utilizes a public website to provide written notices, it should ensure the notices do not contain personally identifiable student information.
Finally, school districts utilizing the Health and Safety Emergency Exception must document the disclosure in the student’s education record, specifying “the articulable and significant threat that formed the basis for the disclosure and the parties to whom the information was disclosed.” 34 C.F.R. 99.32(a)(5). Our firm has prepared a model tracking form for such disclosures, which can be made available upon request.