Assessing Legal Preparedness for School Closure in Response to Pandemic Flu or Other Public Health Emergencies James G. Hodge, Jr., J.D., LL.M. Associate Professor, Johns Hopkins Bloomberg School of Public Health; Executive Director, Center for Law and the Public’s Health December 11, 2006

Principal Objectives The Role of School Closures In Response to Pandemic Flu U.S. children in schools School closure as prevention mechanism State pandemic flu plans Center Project Goals and Methodology Major Findings and Conclusions

U.S. Children in Schools Over 48 million students enrolled in 98,000 public schools nationwide Over 6 million students are enrolled in private schools 88% of school-age children enrolled in public schools, including 87% of PreK-8th grade children, and 91% of adolescents enrolled in grades 9-12 Source: National Center for Education Statistics, based on 2003 data

School Closure as Prevention Mechanism Increasing social distances among children may reduce disease transmission (WHO Writing Group 2006) Modeling analyses suggest that school closure may potentially reduce the incidence rate among children by over 90% (Glass et al. 2006) School closure is part of a comprehensive U.S. strategy to control the spread of disease as reflected in state pandemic flu plans

Pandemic Influenza Plans and School Closures HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT NE IA PA NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC MS AL GA TX LA Plan recognizes school closure: 47 FL Plan does not recognize school closure: 4 PR - (Puerto Rico)

Pandemic Influenza Plans and School Closures - Legal Authority WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT NE IA PA NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA Plan cites legal authority to close schools: 9 FL Plan does not cite legal authority to close schools: 42 PR - (Puerto Rico)

Center Project - Premise The premise is that there is sufficient, clear, and specific legal authority to close schools in preparation for or response to pandemic flu. This premise, however, is uncertain. Centers for Disease Control and Prevention (CDC) requested the Center for Law and the Public’s Health (Center) to prepare a comprehensive analyses of school closure laws nationwide

Center Project Goals Assess the laws, regulations, and policies that authorize school closures for extended periods [up to 12 weeks] at the state and local levels during non-emergencies and declared emergencies; Identify departments, officials, or other persons authorized to close schools; and Assess the criteria and potential conflicts among government actors to close schools

Existing and Emerging Products Comprehensive tables on: School Closure Laws (Table 1) Summary of School Closure Law (Table 2) Departmental Authorization for School Closure (Table 3) Pandemic Flu Plans and School Closure (Table 4) Case studies (forthcoming) Report and scholarship (forthcoming) National input

Methodology - 1 Presumptions Every state has some general public health powers during non-emergencies that could be used to close schools or other facilities Every state has broad public health emergency powers to close schools Every school district/board has some inherent authority to close schools

Methodology - 2 Focus of the Center’s Research Express, specific authority to close schools in non-emergencies and declared emergencies For an extended period of time In response to an actual or potential spread of disease or other public health threats

Methodology - 3 Rationale for assessing specific legal authority for school closure: To move beyond general authorities (e.g., communicable disease laws) and look specifically to express authorizations To pre-identify potential gaps or other impediments to systematic school closure across jurisdictions To limit the potential for conflicts among or within jurisdictions regarding school closure

Methodology - 4 Limitations - the Center’s tabular analysis does not address: The timing or appropriateness of school closure decisions with respect to the epidemiology of disease transmission, severity, or its potential introduction The specific legal route to school closure in jurisdictions with multiple options The accountability of governmental actors in the use (or non-use) of school closure authority in response to actual or potential public health threats

School Closures During Non-Emergencies School closure laws during non-emergencies include provisions that: Expressly authorize school closure due to disease or epidemic – 17 jurisdictions Authorize school closure to protect the public’s health – 10 jurisdictions Authorize school closure for other purposes – 22 jurisdictions

School Closures During Non-Emergencies WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Express authorization to close schools due to disease or epidemic: 17 PR - (Puerto Rico)

School Closures During Non-Emergencies Expressly authorize school closure due to disease or epidemic - Ohio “During an epidemic or threatened epidemic, when a dangerous communicable disease is unusually prevalent, or for any other imminent public health threat as determined by the board [of health], the board may close any school and prohibit public gatherings for such time as is necessary.” R.C. 3707.26A 

School Closures During Non-Emergencies WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Express authorization to close schools or facilities to protect the public’s health: 10 PR - (Puerto Rico)

School Closures During Non-Emergencies Authorize school closure to protect the public’s health – Idaho “The Director [of the health department]… may order the closing of any public, parochial, or private school, or other place of public assembly when, in his or her opinion, such closing is necessary to protect public health.” IDAPA 16.02.10.015(5)

School Closures During Non-Emergencies WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL General authority to close schools for other purposes: 22 PR - (Puerto Rico)

School Closures During Non-Emergencies Authorize school closure for other purposes – Maryland “The final decision of a local board of education to close a school shall be announced at a public session and… shall include the rationale for the school closing and address the impact of the proposed closing on the factors” MD ADC 13A.02.09.01(A)-(D)

School Closures During Emergencies School closure laws during declared emergencies include provisions that: Expressly authorize school closure due to disease or epidemic – 7 jurisdictions Authorize the utilization or closure of facilities or property – 48 jurisdictions Authorize the evacuation of persons from threatened areas – 45 jurisdictions

School Closures During Emergencies WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Express authorization to close schools due to disease or epidemic: 7 PR - (Puerto Rico)

School Closures During Emergencies Expressly authorize school closure due to disease or epidemic – Wisconsin “The [school] board may close any school or dismiss any class in the event of an emergency…or epidemic.” W.S.A. 119.18(6)(b)

School Closures During Emergencies WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Authorization to close/utilize facilities or properties (including schools): 48 PR - (Puerto Rico)

School Closures During Emergencies Authorize the utilization or closure of facilities or property – Kansas The governor may “utilize all available resources of the state government…and utilize any private property if the governor finds such action necessary to cope with the disaster.” K.S.A. §§ 48-925(c)(2), (4)

School Closures During Emergencies WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Authorization to evacuate persons from threatened areas (including schools): 45 PR - (Puerto Rico)

School Closures During Emergencies Authorize the evacuation of persons from a threatened area – North Dakota The governor may “[d]irect and compel the evacuation of all or part of the population from any stricken or threatened area within the state if the governor deems this action necessary for the preservation of life or other disaster or emergency mitigation, response, or recovery.” NDCC 37-17.1-05(6)(e)

Departmental Authorization During Non-emergencies School closure laws during non-emergencies: Empower the public health department or a public health officer to close schools – 30 jurisdictions Empower the education department or a school board/superintendent to close schools - 24 jurisdictions Empower the emergency management department to close schools – 0 jurisdictions

Departmental Authorization During Emergencies School closure laws during emergencies: Empower the public health department or a public health officer to close schools – 9 jurisdictions Empower the education department or a schoolboard/superintendent to authorize school closure – 6 jurisdictions Empower the emergency management department or Governor to close schools – 51 jurisdictions

Departmental Authorization During Non-emergencies – Public Health WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Department of Public Health: 30 PR - (Puerto Rico)

Departmental Authorization During Emergencies – Public Health WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Department of Public Health: 9 PR - (Puerto Rico)

Departmental Authorization During Non-Emergencies – Education WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Department of Education: 24 PR - (Puerto Rico)

Departmental Authorization During Emergencies - Education WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Department of Education: 6 PR - (Puerto Rico)

Departmental Authorization During Non-Emergencies – Public Health & Education WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Departments of Public Health and Education: 5 PR - (Puerto Rico)

Departmental Authorization During Non-Emergencies – Emergency Management WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Department of Emergency Management: 0 PR - (Puerto Rico)

Departmental Authorization During Emergencies – Emergency Management WA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL Governor or Department of Emergency Management: 51 PR - (Puerto Rico)

Major Conclusions Explicit authority to close schools during non-emergencies is lacking in many jurisdictions [24] Significant variations in the departments authorized to close schools [31 – public health; 24 – education; 5 – dual departments] Wide differentiation of levels of government responsible for closing schools [30 – state; 36 – local; 15 – dual levels] Major shift of authority to close schools once an emergency is declared Lack of assessment criteria on the appropriateness of school closure

Major Conclusions While there are legal avenues to close schools in virtually every jurisdiction in non-emergencies and emergencies, variations in legal authority across jurisdictions may lead to: Potential disagreements concerning the responsibility, timing, and duration of school closures Consideration or balancing of competing interests Delays

Acknowledgments Many thanks to the following for their contributions to the research and presentation: Dhrubajyoti Bhattacharya, J.D., M.P.H., Center Fellow Jennifer Gray, J.D., Center Researcher P.J. Wakefield, Center Administrator

For more information . . . James G. Hodge, Jr., J.D., LL.M. (410) 955-7624 jhodge@jhsph.edu Center website: www.publichealthlaw.net Thank you!