April 21, 2022 letter to the Illinois State Board of Education
ISBE's September 7, 2021 resolution was mistaken and must be rescinded.
I’m posting this letter I sent in April to ISBE, the State Superintendent, and ISBE general counsel, so that I can embed it in two other posts that reference it (this one and this one).
Sent via email
April 21, 2022
Dear Illinois State Board of Education Members, Dr. Ayala, and Mr. Duffy:
I writing to follow up on my public comments at yesterday’s meeting. This letter elaborates on the concerns I expressed and makes several requests.
On September 7, 2021, the Board met to adopt a resolution that was a revision of its May 17, 2021 resolution. At that meeting, General Counsel Jeremy Duffy told the Board (and the Board agreed) that Section C of 77 IL Admin Code 690.30 “already allowed schools to exclude students, based on being asymptomatic or for other reasons such as close contacts.” Mr. Duffy went on to say that this was “a reminder to school districts that this has always been an option.”
This interpretation was inaccurate, yet continues to be promoted by ISBE, IDPH, local health departments, and schools.
The section follows:
C) Schools, Child Care Facilities, and Colleges/Universities
1) Except in an emergency, the occurrence of a case of a communicable disease in a school, child care facility or college/university should not be considered a reason for closing the school, facility or college/university.
2) Persons suspected of being infected with a reportable infectious disease for which isolation is required, or persons with diarrhea or vomiting believed to be infectious in nature, shall be refused admittance to the school or child care facility while acute symptoms are present.
3) School, child care facility, and college/university authorities shall handle contacts of infectious disease cases as prescribed in this Part, or as recommended by the local health authority.
4) When outbreaks of disease occur in any child care facility, staff and attendees of the facility may be considered to be contacts to cases and may be required by the local health authority to submit specimens for testing.
Section C (1) is relevant to the September 7, 2021 resolution, but not relevant to the misinterpretation I’m addressing.
Section C (2) is clearly referring to actually-sick students and staff – not to anyone without symptoms (i.e., “while acute symptoms are present”). DPH has a communicable diseases chart for schools, last published in 2017. Please note that criteria for so-called “exclusion” by the health department of actually-sick children is symptom-based. Of all the communicable diseases comparable to Covid for children, none carry a requirement to be tested (or clinically-diagnosed), and none dictate a certain number of days out of school.
Section C (3) directs schools to handle contacts of infectious diseases “as prescribed in this Part, or as recommended by the local health authority.” The “Part” is the whole of 690 (i.e., Titled “PART 690 CONTROL OF COMMUNICABLE DISEASES CODE”), which gives IDPH or the LHD - not the schools - authority to conduct investigations, identify close contacts, etc. LHDs are not permitted to use school nurses or other district personnel to conduct work, or to request information from schools about students that is protected by FERPA.
The claim that schools have always been able to legally order symptomless children to stay home from school also has no basis in what Illinois schools have practiced. There has never been – and still is not – a reason for a child to be tested for a respiratory virus unless he or she is sick. A medical professional determines if a test is needed to aid diagnosis and treatment. The same is true for any illness.
Illinois parents are accustomed to receiving notices from a school nurse or administrator that announce one or more students have been diagnosed with a reportable communicable disease. Care is taken to safeguard privacy (e.g., “a student in third grade”); parents are told symptoms to watch for; no effort to trace the sick students’ movements or contacts is attempted; and no recommendation or order for symptomless students to stay home is made.
Section C (4) has nothing to do with what the school can require, but with what a health department may order in a certain circumstance, subject to an individual’s due process rights.
With viruses similar to Covid, like flu, small numbers of cases has never been used to launch a health department investigation in or close a classroom or school. Indeed, historically, it took a high number of actually-sick students at a school to close it for even a few days. An LHD could legally require students and staff to test as a part of an outbreak investigation, but this is rarely done with seasonal respiratory viruses, and is still subject to medical and religious objections.
During discussion on September 7th, the Board recognized that the “need” for the revised resolution was, in part, prompted by parents’ legal actions. That is, as parents became aware of what the IDPH Act and Code 690 does and doesn’t allow, they began to file legal challenges to school and health department directives. ISBE wrongly acted as though those rights did not exist or were immaterial.
If Illinois schools had the authority asserted in your resolution, the Governor would not have issued an executive order 10 days later, providing legally-specious cover for IDPH’s Sept 17th emergency rules. Those rules attempted to change the communicable diseases code in ways that conflicted with the IDPH Act and Illinois School Code.
It took significant legal action for the September 17th emergency rules to be “checked,” and denied re-filing. Irrespective of what anyone at ISBE believes about the February 4, 2022 ruling, the DPH Act and section 690 are in effect, without additional modifications or supplemental rules.
On March 4, 2020, then-IDPH Director Ngozi Ezike submitted a signed statement to the Joint Committee on Administrative Rules (JCAR) “withdrawing” the rules the agency had attempted to re-file. She also wrote, "Schools continue to have long-standing authority to exclude confirmed, probable, & close contact of infectious disease cases, including COVID-19.”**
Dr. Ezike cited no statutes or section of the code, and did not explain her claim. It’s puzzling that she believed the authority existed, yet oversaw IDPH when it filed its September 17th emergency rules, and later attempted to re-file after those expired. If authority already exists, why were the rules needed?
Although Dr. Ezike has left her position, ISBE and IDPH are still misleading LHDs and schools in its most current “guidance” about Covid-19. For example, this FAQ says:
Schools should investigate the occurrence of cases and suspect cases in schools and identify close contacts for purposes of determining whether students or school personnel must be handled as recommended by the local health department per 77 Ill. Admin. Code 690.361 and 690.30. Schools can assist the LHD by identifying all close contacts to a confirmed case. Both schools and any other third parties are required, pursuant to the state’s regulations, to cooperate in the LHD’s disease investigation and contact tracing initiatives.
The cited codes do not give schools authority to “investigate” cases or to “identify close contacts.” That is the health department’s job. The school is required to report confirmed or suspected cases to the health department, and then cooperate by providing information to LHD, if the LHD investigates, to the extent allowed by privacy laws.
Department of Public Health Act 20 ILCS 2305 is unequivocal:
(a) [the Department of Public Health] has supreme authority in matters of quarantine and isolation and may declare and enforce quarantine and isolation when none exists and may modify or relax quarantine and isolation when it has been established (emphasis added)
***(c) Except as provided in this Section, no person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction.
Further, Illinois Administrative Code Section 690.1315 of Title 77 (the “Code”) provides that the “certified local health department shall have the authority to: 1) investigate any case or suspected case of a reportable communicable disease or condition; (emphasis added) and 2) institute disease control and contamination control measures, including physical examination, testing, counseling, treatment, vaccination, decontamination of persons, isolation, quarantine, inspection and closure of buildings and facilities, or other measures considered necessary”. The Code does not give any such authority to school districts.
Bottom line: ISBE board and staff need to stop telling schools that Illinois law gives schools authority and power that schools don’t have under the law.
I respectfully request that ISBE at least acknowledge that its September 7, 2021 resolution made inaccurate claims about schools’ ability to exclude students, and revise all current publications on these matters to be consistent with the law.
Better yet, ISBE should cease assuming authority over or sharing responsibility for public health management, and urge schools to return to normal, common-sense protocols for responding to student illness.
**I misquoted in my letter. The text of her statement says '“address,” not exclude. See the text of Dr. Ezike’s statement in my letter to JCAR.
The only response I received from the addressees was from Roger Eddy. He said, “Received, thank you for your input,” to which I responded, “This wasn’t ‘input,’ Mr. Eddy. It’s accountability.”