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Florida Revised COVID-19 School Rule Short Circuits Legal Challenge By Five School Districts

TALLAHASSEE (CBSMiami/NSF - Pointing to a need to "minimize the amount of time students are removed from in-person learning," the Florida Department of Health on Wednesday issued a revised rule that gives parents more authority to decide whether children go to school after being exposed to people who have COVID-19.

The emergency rule also continues to require that parents be able to opt students out of school-mask requirements but includes a change that takes aim at some school districts that only allow opt-outs for documented medical reasons. That change says opting out of mask requirements is "at the parent or legal guardian's sole discretion."

The issuance of the revised rule quickly short-circuited legal challenges by five school districts to a rule the Department of Health issued Aug. 6 to help carry out Gov. Ron DeSantis' efforts to prevent school mask mandates. Administrative Law Judge Brian Newman said during a telephone hearing Wednesday morning that he did not have any "wiggle room" after the revised rule was issued.

"I don't think I have any jurisdiction to do anything other than to dismiss this case," Newman said.

New state Surgeon General Joseph Ladapo, whose appointment was announced Tuesday by DeSantis, signed the emergency rule.

Senate Democratic leader Lauren Book blasted the revised emergency rule.

"Florida's new Surgeon General is a doctor of disinformation who traffics in anti-vaccine and anti-mask conspiracies which threaten public health and safety. His first official move puts schoolchildren at risk and places his dangerous denial of science on full display. I urge Florida school districts to follow sensible health policies to ensure the safety and well-being of students, teachers, and staff," she said in a statement.

The revised rule replaces one from August 6th that drew heavy attention as some school districts have sought to require students to wear masks to prevent spread of COVID-19.

The school boards in Miami-Dade, Broward, Orange, Alachua and Leon counties challenged the Aug. 6 rule, which did not include the new provision about parents or legal guardians having "sole discretion" about opting out of school mask requirements.

Another substantial change in the revised rule deals with protocols for students who have been exposed to COVID-19. The new rule says schools "shall allow parents or legal guardians the authority to choose how their child receives education after having direct contact with an individual that is positive for COVID-19."

It gives parents the option of allowing the "student to attend school, school-sponsored activities, or be on school property, without restrictions or disparate treatment, so long as the student remains asymptomatic." Parents also would have the option of quarantining their students for up to seven days.

Broward Teachers Union President Anna Fusco released a statement, saying, " We believe Florida Surgeon General Dr. Joseph Ladapo's emergency rule is wrong and extremely ill-advised. The spread of the virus among children has gone up by triple digits, yet our governor and his newly appointed surgeon general continue to bury their heads in the sand. This is clearly politically, not public health, motivated. Contact tracing and quarantining are working to minimize the virus's spread. Why are we fixing what's not broken?"

Dr. Frank Yanez, a family practitioner, said he tells his patients who have been exposed to COVID-19 to isolate.

"They should quarantine for at least seven days and get at least two tests, two PCR, that are negative. And then after a week they can go back to school," he said.

The Aug. 6 version of the rule said students who have contact with people positive for COVID-19 "should not attend school, school-sponsored activities, or be on school property" until they receive negative COVID-19 tests four days after the last exposure or are asymptomatic and wait seven days after their last exposure.

The change in the revised rule reflects DeSantis' oft-stated arguments that parents should be able to make choices for their children and that students need to be in school --- arguments that Ladapo echoed Tuesday during a news conference to announce his appointment.

An explanation accompanying the revised rule said the Department of Health has conducted a review of data involving children who tested positive for COVID-19 and children who had been in contact with infected people.

"The department observed a large number of students who have been required to quarantine for long periods of time, resulting in the loss of hundreds of thousands of days of in-person learning," the explanation said. "In addition, the department observed no meaningful difference in the number of COVID-19 cases in school-aged children in counties where school districts have imposed mask mandates. It is necessary to minimize the amount of time students are removed from in-person learning based solely on direct contact with an individual that is positive for COVID-19, to ensure parents and legal guardians are allowed the flexibility to control the education and health care decisions of their own children, and to protect the fundamental rights of parents guaranteed under Florida law."

The revised rule also sets protocols for students who are symptomatic or test positive for COVID-19.

Under one protocol, students will be able to return to school after they receive negative tests and are asymptomatic. Under another protocol, they will be able to return 10 days after the onset of symptoms or positive test results if they have not had fevers for 24 hours and other symptoms are improving. Under a third protocol, students could return with written permission from doctors or advanced registered nurse practitioners.

(©2021 CBS Local Media. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. The News Service of Florida's Jim Saunders contributed to this report.)

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