New legal threat emerges in Union County showdown over school COVID rules

A rift between Union County schools and the county’s health department has widened — this time over how COVID-19 contact tracing will be done to ensure a student or teacher who was exposed to the virus stays home until there’s assurance they are not infectious.

A newly-public letter sent Friday to the school’s superintendent from Union County Public Health Director Dennis Joyner invokes the health official’s authority under North Carolina law to require the district to take further precautions during the pandemic.

For weeks, the Union County Public School board has maintained they’re acting in accordance with North Carolina law. The district’s superintendent also says schools are supporting the county’s health department. However, the state’s top health official earlier this month and now, the county’s health director, say otherwise.

And the Union County Consolidated Human Services Board has called a special meeting for 3:15 p.m., Wednesday. The agenda says members will hear a COVID-19 update, including information related to schools. It’s unclear whether the board will take action.

Board of health members have the power to issue local health orders or mandates but has not yet done so in response to recent school board decisions. Last week, a majority of county commissioners voted “no confidence” in the way school leaders have handled decisions surrounding COVID-19 protocols.

The issue stems from a Sept. 13 school board vote that effectively curtailed widespread quarantining of students — a precaution health experts recommend in order cut down on possible coronavirus outbreaks in schools, where many children are not yet able to be vaccinated.

At the time, nearly 7,000 students (close to 1 of every 6) in UCPS were in quarantine, the majority of whom had not tested positive for COVID. Most school districts in North Carolina are avoiding such drastic quarantine interruptions by requiring masks, which not only provides protection but also reduces the need for mass quarantines under state health regulations.

In a stern letter sent last week to UCPS Superintendent Andrew Houlihan, the health director says his department is able to initiate quarantine protocols for those who test positive for COVID — but Joyner alleges the recent school decisions have left the county unable to effectively conduct close contact quarantining. That refers generally to a 7, 10 or 14-day period where a teacher or student would proactively stay home if someone they’ve had close contact with is diagnosed with COVID.

Joyner wrote: “The scant information we have been receiving from UCPS is insufficient to permit the local health department to carry out its statutory duty to protect the students and the public from transmission of a dangerous communicable disease.

“Your choices to date have placed UCPS in the position of needing to exclude more students from in-person school attendance than would otherwise be necessary if fuller cooperation and compliance with the control measures had been provided to identify and exclude persons who may have been meaningfully exposed to a student or staff member known to be infectious with COVID-19 while in the school setting.”

As of Friday, the most recent data available, around 1,500 people (mostly UCPS students) are not allowed at school due to having COVID or having been exposed. That translates to around five people quarantined in Union schools for every one positive case detected.

Are Charlotte-area schools seeing fewer COVID cases? Here’s the latest information.

Contact tracing dispute

Some changes in quarantining rules and the number of people temporarily not allowed at school were expected after a school board vote last week. Then, N.C. Department of Health and Human Services Secretary Mandy Cohen said her office was poised to take legal action if the UCPS board did not rescind its policy, which she said ran afoul of CDC guidelines, pandemic best practices and state public health law, due to the effective suspension of close contact quarantining.

In response to Cohen’s threat, the school board decided to revise its COVID-19 protocols Sept. 20 — namely to reduce the length of quarantining for students who haven’t tested positive while also agreeing the health department could enforce quarantine periods for anyone deemed a close contact. Another part of the board’s policy change said any student returning from quarantine before a 14-day period needs to wear a mask indoors at school.

The problem, according to Joyner, is that the health department — without more cooperation from school officials, he says — can’t isolate potentially sick students from classrooms quickly or effectively, even when they’ve likely been exposed to someone with COVID.

In response to Joyner’s 3-page letter — which lays out specific steps he wants the school district to take and mentions “criminal or civil” enforcement action for those who don’t apply with public health laws — the superintendent wrote a short response.

“I appreciate your acknowledgment that it is the statutory duty of Public Health to perform contact tracing responsibilities. My staff will continue to provide information requested to support you and your staff in these responsibilities,” part of Houlihan’s letter states.

Joyner’s demands

In the letter, Joyner says he’s “formally requiring” UCPS employees immediately begin to comply with those steps, citing public health director authorities he has under state law.

The Charlotte Observer asked UCPS for a copy of its current contract tracing and COVID-19 protocols plan developed since Cohen’s involvement earlier this month. As of Tuesday, officials have refused to provide a copy of that document, saying it was not complete.

In Joyner’s letter, he’s says the district must:

▪ Keep students, staff and visitors away from school if they “are known or reasonably suspected to be infected with COVID-19.”

This part of the district COVID-19 rules has, so far this school year, not been in dispute — at least not publicly — between school and health department officials. Staff, parents, students and others may self-report symptoms or a positive test but the health department also gets notification of positive tests among residents.

▪ Enforce close contact quarantine requirements, meaning mandatory quarantining of students and adults if they’ve been within six feet of someone with COVID-19 for more than 15 minutes in a one-day period. Joyner says UCPS needs to “promptly communicate” to parents and guardians, as well as staff, if they are required to quarantine due to close contact exposure.

This aspect has been central to the conflict between Joyner’s department and school board members, some of whom say school-level nurses do not have the time, nor authority, to require employees or students keep away from school due to suspicion they may have been infected.

Throughout North Carolina, however, public school systems are jointly handling contact tracing efforts with local health departments. Under state health recommendations for reopening schools, North Carolina’s DHHS says close contact quarantining — and the prerequisite contact tracing effort — isn’t needed if a district requires masks in school.

▪ Provide state and local health officials, for contact tracing purposes, with seating charts and class rosters, as well as contact information for families. This would include contact information and identification of who would have had close contact during class or in a school activity with any student or employee who is later diagnosed with COVID-19.

It’s unclear exactly how this process of sharing information has gone since the board’s two votes affecting district policies. Joyner’s letter contends the school board “has taken several actions to prohibit UCPS staff from participating in contact tracing,” relative to those students or staff who might be considered a close contact.

Mask-optional district

Since the beginning of the school year last month, Union County’s school board has held strong against a mask mandate, despite guidance to do so from local and state health officials and the StrongSchoolsNC Toolkit, which has largely guided reopening classrooms this fall.

School Board Chairperson Melissa Merrell said State Health Director Elizabeth Cuervo Tilson wanted the district to implement a mask mandate, but Merrell told her: “We are mask optional.”

In his letter, Joyner reiterated that the Union County school board’s ongoing decision not to adopt a masking requirement forces the district to have to quarantine students or staff who are close contacts with someone who tested positive for COVID-19.

“In order to protect our children and the community from the dangerous public health impacts of COVID-19, our staff has been diligently working to identify close contacts as required by the state-mandated control measures,” Joyner wrote. “The Union County Board of Education, however, has taken several actions to prohibit UCPS staff from participating in contact tracing to determine close contacts of positive cases who must be excluded from in-person school in accordance with the control measures.”

“In light of our shared responsibility to protect the health and safety of the students and staff in Union County schools, and to the Union County community as a whole, I hope we can work together to mitigate the most dangerous outcomes of COVID-19 and the Delta variant and soon return to a pattern of normalcy,” Joyner wrote.

Superintendent Houlihan responded in his letter, directing Union County’s health department staff to contact Assistant Superintendent Jarrod McCraw or his team if there is an issue.

“We can respond to your concerns more efficiently when they come to us from your staff upon identification instead of from NCDHHS staff or via written correspondence,” Houlihan wrote.