On December 30, 2021, Governor Parson announced that he would be allowing Missouri’s COVID-related State of Emergency to expire at the end of 2021. As of January 1, 2022, all COVID-related statutory and regulatory waivers have been  terminated. The expiration of the State of Emergency comes on the heel of multiple developments regarding school districts and COVID mitigation measures, including the recent Cole County decision invalidating several Department of Health and Senior Services’ regulations and the Attorney General’s letter to school districts about masks and quarantine protocols.

As students return to school this week and as COVID case numbers increase in certain communities, our Client Alert answers the questions more frequently asked by district leaders about the current situation.

How does the expiration of the State of Emergency overlap with the new statute about public health orders (Section 67.265)?

Before the start of the current school year, the Legislature passed Section 67.265 RSMo., which requires unilateral public health orders by local health departments and executives to be approved by the local governing body or else the order becomes void.

It remains unclear whether or not Section 67.265 applies to school districts. No state court has issued an order deciding the issue and the Attorney General has offered differing opinions about its application to schools. In fact, the issue of how Section 67.265 applies to school districts was pending before the Court in the Attorney General’s lawsuit against the Columbia Public Schools, but the Attorney General dismissed that case late in December 2021. Given this uncertainty, some districts and school boards have attempted to adhere to the requirements of the new statute, if only out of an abundance of caution.

Under Section 67.265, if a state of emergency has been declared, the local governing body must vote by a simple majority to approve and extend any public health order that “directly or indirectly closes, partially closes, or places restrictions on the opening of or access to” certain buildings (including schools) every 30 days.

Alternatively, if a state of emergency has not been declared, the local governing body must vote by a 2/3 majority to approve and extend any public health order that “directly or indirectly close an entire classification of” certain buildings (including schools) every 21 days.

The existence of a declared state of emergency, then, affects not only voting timelines but also which decisions need to be voted on to remain in place and by what type of majority vote.

What does this mean for our District’s COVID mitigation measures like masks and isolation/quarantine/exclusion?

Now that the state of emergency has been lifted by the Governor, the only public health orders required by Section 67.265 to be voted on regularly are ones that directly or indirectly close an entire classification of school buildings.

The most logical interpretation is that mask requirements and individual decisions on isolation/quarantine/exclusion do not “close” an entire classification of school buildings.

At the start of the first semester, some school boards voted every 30 days on COVID mitigation plans that included mask requirements and protocols for isolation/quarantine/exclusion. This action allowed those districts to adhere to the portion of Section 67.265 that requires a vote every 30 days on orders that place restrictions on the access to school buildings, if it was later determined by a court that Section 67.265 applied to school districts. Without a declared state of emergency, however, that portion of Section 67.265 is no longer applicable.

We still recommend that school boards regularly review COVID mitigation measures like mask requirements and isolation/quarantine/exclusion protocols. This type of regular action may help with transparency to the public as well as provide the opportunity for a timely change if warranted by new COVID circumstances within your local community. Additionally, it allows for COVID mitigation decisions to be made by an elected body rather than at the administration level.

What if our District decides that a building should go virtual for a period of time because of local COVID case numbers?

In some communities, COVID numbers have been trending upwards as the Omicron variant increases transmission rates and positive test results. Depending on local case numbers, this may put a strain on student attendance and adequate staffing for in-person instruction.

If your District is considering virtual education for a building (e.g., for a one or two week period of time to allow COVID case numbers and required isolations in that building to decrease to a specific level), we recommend that your school board vote on any such action.

Arguably, the decision for an entire building to go virtual for any length of time may trigger the requirements of Section 67.265 (since the action “closes” a school building). If a court were to determine that Section 67,265 is applicable to school districts, the school board would need to vote every 21 days in order for the decision to go virtual at a building to remain in effect.

Is there anything else for our District to consider as part of any decision to go virtual at a building?

During the last legislative session, the General Assembly reiterated that in-person instruction was preferred for school districts and took action to tie state funding to in-seat attendance.

If a school district elects to go virtual at a building for a period of time (and especially without a state of emergency declared by the Governor), there is a risk that DESE may not accept student attendance during that time period for purposes of state funding. We recommend that school districts reach out to DESE on this issue prior to making any decision to go virtual at a building.

After almost two years, COVID continues to present challenges for district administrators and school boards. As students and staff return to your buildings after the holidays, please reach out to Mickes O’Toole for advice and recommendations.

For more information about COVID mitigation measures in your school district, please contact us.

Natalie Hoernschemeyer | Grant Wiens