STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
Mr. and Mrs. Doe, on behalf of their son, STUDENT M. DOE, Petitioners
vs.
CRANSTON SCHOOL COMMITTEE and CRANSTON SCHOOL DEPARTMENT, Respondents
RIDE No. 20-072A
DECISION AND ORDER
Held: Policy adopted by School Committee in the wake of the COVID-19 pandemic which mandated the wearing of face coverings while in class and which provided that a Section 504 team would be convened only if a physician’s note was provided verifying the existence of a qualifying impairment was in violation of Section 504 of the Rehabilitation Act of 1973, which imposes an independent duty upon the District to evaluate and determine whether a student suffers from a qualifying impairment whether or not a physician’s note has been provided. Thus, the District was ordered to verify whether the asthma allegedly suffered by a first grade student who had trouble breathing while wearing a face mask was a qualifying impairment under Section 504, and if it is, to consider whether the impairment affects his ability to learn, and if so, whether possible accommodations were feasible without endangering the health of other students or staff.
Date: October 29, 2020
On October 21, 2020, Petitioners, Mr. and Mrs. Doe, emailed the Commissioner and alleged that their son, Student M. Doe – a first-grader at the Orchard Farms Elementary School (the “School”) in Cranston, Rhode Island – was “being negatively affected” by the School’s implementation of a policy adopted in the wake of the COVID-19 pandemic by Respondent, Cranston School Committee (the “Policy” and the “School Committee,” respectively), which mandated that students wear face coverings at all times while on school premises. Petitioners claimed that their son, whom they allege has suffered from asthma since the age of four, was legally entitled to attend class, in-person, without wearing a face covering, as long as he maintained the requisite social distancing. Alternatively, Mr. and Mrs. Doe offered to pay for installing a plexiglass barrier in their son’s classroom to separate him from other students.
Petitioners challenged the Policy as facially overbroad since it failed to include an exception to the face mask requirement when students are able to remain socially distant, and alleged that its implementation by the School and Respondent, Cranston School Department (the “CSD”), was illegal. Respondents joined Mr. and Mrs. Doe’s request for expedited review of the threshold legal issues without the benefit of an evidentiary hearing so as to obtain some timely guidance from the Commissioner.
I. Jurisdiction, Expedition and the Burden of Proof
The Commissioner has jurisdiction over Petitioners’ claim under R.I. Gen. Laws § 16-39-1, which confers jurisdiction over “any matter of dispute... arising under any law relating to schools or education,” id., as well as under R.I. Gen. Laws § 42-87-59(c), which confers jurisdiction with respect to complaints of discrimination in the area of elementary and secondary education. Moreover, although past practice as well as the doctrine of administrative exhaustion normally requires that a party appeal a dispute to their local school committee before the Commissioner will hear the case, it is an appropriate exercise of the Commissioner’s discretion to exercise jurisdiction here on an expedited basis since: (1) M. Doe’s continued in-person school attendance is at risk; and (2) it is likely that legal issues similar to those raised here will be raised elsewhere. Thus, the Commissioner concluded that some timely guidance would be useful, and agreed to grant the parties’ joint request to hear at least a portion of the case on an expedited basis.
Finally, as in most cases before the Commissioner, the petitioner – here, M. Doe – has the burden of proof. See, e.g., Parents of CD v. McWalters, 2005 WL 1984450 (Superior Court, August 15, 2005) (Dimitri, J.), slip. op. at *5-*6.
II. Factual Background and Allegations
During a telephone conference call with the undersigned Hearing Officer on October 22, 2020, Mr. and Mrs. Doe, who did not have legal counsel, made numerous allegations concerning the allegedly inconsistent manner by which their son’s teacher, the principal of the Elementary School, and two School nurses had handled their request that M. Doe be allowed to attend class without wearing a face covering.[1] However, the face mask Policy was adopted and became effective only as of October 5, 2020. Thus, Petitioners’ various allegations concerning the allegedly objectionable conduct of School employees prior to October 5 is not relevant to the disposition of the initial legal issues being raised, which the Commissioner will decide herein without prejudice to whatever right Petitioners might later have to a hearing with respect to their specific, pre-October 5 allegations.
As noted, both parties asked the Commissioner to decide the relevant legal issues prior to any evidentiary hearing. It nonetheless will be useful to elaborate some of the uncontested factual background, and to describe Petitioners’ relevant allegations without making any finding as to their accuracy.
1. On March 9, 2020, Governor Gina M. Raimondo declared a state of “disaster emergency'” due to the dangers posed by the COVID-19 pandemic, see Executive Order (“E.O.”) 20-02, and a week later, she prohibited the gathering of more than twenty-five (25) people in the state. See E.O. 20-04 (March 16, 2020). All school buildings in Rhode Island were thus closed from March of 2020 through the remainder of the 2019-2020 school year, with distance learning for all students taking place while school buildings were closed.
2. On June 10, 2020, the Governor issued an Executive Order directing the Department of Education (“RIDE”) to issue a uniform, statewide school calendar for the upcoming school year, and subsequently, the first day of school throughout the State was scheduled for September 14, 2020.
3. RIDE and the Rhode Island Department of Health (“RIDOH”) collaborated to design regulations and provide guidance to local school districts for the eventual reopening of the schools, and in August, RIDE and RIDOH released Back to School RI: Facilities Framework Guidance to Reopen Rhode Island’s Elementary and Secondary Schools (“Back to School”), and made clear that:
[f]ace coverings play a critical role in mitigating risk related to COVID-19. As of July 29, 2020, the Governor, Commissioner, and RIDOH are requiring face coverings for all staff and students in the PK-12 setting, even when students are in stable groups and physically distanced (6+ feet apart). Id. at 4.[2]
4. Moreover, RIDE and RIDOH noted that:
[m]asks are required in the K-12 setting, even when students are in stable groups and socially distanced (greater than 6 feet apart). The Rhode Island Department of Health (RIDOH) understands and supports the exceptions to wearing masks for health considerations, as outlined in the CDC guidance. If a mask cannot be tolerated during vigorous exercise, additional physical distance is recommended (greater than 14 feet).
See Back to School.[3] RIDE and RIDOH also advised that “[p]arents and other adults” should “[r]emember the three W’s: Wear your Mask, Wash your Hands and Watch your Distance,” while also cautioning that “[m]asks should NOT be worn by kids younger than age two, who have trouble breathing, or who can’t remove a mask without help.” Id.[4]
5. In addition, according to the CDC:
[m]asks are recommended as a simple barrier to help prevent respiratory droplets from traveling into the air and onto other people when the person wearing the mask coughs, sneezes, talks, or raises their voice. This is called source control. This recommendation is based on what we know about the role respiratory droplets play in the spread of the virus that causes COVID-19, paired with emerging evidence from clinical and laboratory studies that shows masks reduce the spray of droplets when worn over the nose and mouth.
See Considerations for Wearing Masks.[5]
6. The CDC also recognized that masks should not be worn by “anyone who has trouble breathing,” adding that:
... wearing masks may not be possible in every situation or for some people. In some situations, wearing a mask may exacerbate a physical or mental health condition, lead to a medical emergency, or introduce significant safety concerns. Adaptations and alternatives should be considered whenever possible to increase the feasibility of wearing a mask or to reduce the risk of COVID-19 spreading if it is not possible to wear one.
Id. Moreover, the CDC has opined that individuals who have moderate or severe asthma may have a higher risk of becoming very sick from COVID-19.[6]
7. In the wake of the school closings, the CSD joined several other school districts and formed a Reopening Schools Task Force to prepare a Reopening Plan (the “CSD Plan”). The self-described “core values” “driving the Plan” included “put[ing] safety first,” and the CSD Plan emphasized that “[w]e will leverage science, data, and public health.” See CSD Plan at 4. In addition, the CSD Plan made clear that the District would:
[i]nform students, staff, and visitors of the requirement to wear face masks unless they can easily, continuously, and measurably maintain at least six (6) feet of distance from others for the duration of his or her time in a building. Id. at 7.
8. In July and August, Mr. and Mrs. Doe allegedly discussed with various school officials the fact that their first-grade son had asthma and would have trouble breathing if required to wear a face mask in class at all times. According to Petitioners, they were told that accommodations would be made so that M. Doe could attend class in person without a mask, and that a doctor’s note would not be required.[7]
9. However, on September 8, 2020, the CSD wrote parents and guardians and, among other things, advised that “[m]asks are to be worn by all, at all times, in all parts of the school buildings with the exception of breakfast, lunch and snack times, or when outside, six feet apart, for a mask break,” adding that “[w]e ask that you are mindful of new policies and procedures regarding mask-wearing, social distancing and drop-off and dismissal.” CSD Exhibit 1 at 2.
10. Three days later, the CSD again wrote as they “look[ed] forward to the first day of school,” and reminded parents and guardians to “be sure to read it and remind your students to follow the guidelines for screening students, masks, seating and social distancing on buses and at bus stops.” CSD Exhibit 2 at 1. The School Department expressed concern that “your students understand and will be following the rules designed to keep everyone safe regarding maskwearing and social distancing any time they are at a bus stop, on a bus or in a CSD school building.” Id. at 2.
11. On September 15, 2020 – the second day of school – M. Doe allegedly was removed from class for failure to wear a face covering. He then was returned to class after some consultation with the School nurse, although he was removed and returned to class at least one additional time during the following week. Subsequently, Mr. and Mrs. Doe were advised that in the absence of a physician’s note, they would have to keep M. Doe at home and take advantage of distance learning unless they agreed that he would wear a mask while in class.[8]
12. Mr. and Mrs. Doe were unable to procure a note from M. Doe’s Boston pulmonologist since, they claimed, the pulmonologist’s office has a firm policy of not providing notes to schools concerning the wearing of face masks. Indeed, it is unclear whether the School has even been provided with medical documentation confirming that M. Doe has asthma, or any plan for dealing with the condition while at school, and M. Doe does not have a Section 504 Plan.[9]
13. Mr. and Mrs. Doe offered to pay for the installation of a plexiglass barrier to separate their son from other students so as to enable M. Doe to attend school in person, but the School rejected the offer.
14. On October 5, 2020, the Cranston School Committee adopted Policy 4085, which provides, in pertinent part, as follows:
Face coverings will be required to be worn by all staff, students and other individuals entering school premises and/or attending school events or functions.
- Employees/Students/Visitors shall wear a face covering while on school grounds.
- Students who do not arrive at school with a face covering, will be provided one.
- Face coverings should be provided by the student/family, but extra disposable face coverings will be made available by the school for students and/or staff who need them. Reusable face coverings provided by families should be washed by families daily.
- Face coverings are required to be worn by everyone on the bus during school bus transportation.
* * *
Exceptions
- When a staff member is alone in a room/office, they may remove their face covering.
- Cloth face coverings should not be placed on children younger than age two.
- No one within the developmentally-delayed population will be forced to wear a face covering.
Physician’s Note
- A physician's note does not excuse face covering requirements.
- If the physician's note indicates an underlying condition/impairment which would impact the individual student/staff member wearing a face covering, a 504 team will be convened and an appropriate plan will be developed.
Id. (emphasis added).[10]
III. Positions of the Parties
1. M. Doe
According to Mr. and Mrs. Doe, Policy 4085 is overbroad, and not rationally related to keeping students and staff safe from COVID-19, because it does not permit students to be without masks even if they remain socially distant. In addition, they argued that a physician’s note should not be required before the School considered the need for an accommodation. And finally, Petitioners argued that the School’s rejection of their offer to pay for the installation of a plexiglass guard in M. Doe’s class was unreasonable, and wrongly denied their son the opportunity to attend class in-person.
2. The School Committee and the CSD
The School Committee argued that the Policy was based upon the best scientific evidence, and was designed to keep students and staff safe, and CSD argued that it properly applied the Policy in the case of M. Doe.
IV. Decision
1. The School Committee’s Authority to Adopt the Face Mask Policy
Rhode Island’s Supreme Court has made clear that the regulation of public education is within the plenary authority of the General Assembly, see Pawtucket v. Sundlun, 662 A.2d 40, 57 (R.I. 1995) and Woonsocket Sch. Comm. v. Chafee, 89 A.2d 778, 791 (R.I. 2014), and the Legislature, in turn, has vested the “entire care, control, and management of all public school interests of the several cities and towns... in the school committees of the several cities and towns.” R.I. Gen. Laws § 16-2-9(a). At the same time, the Legislature has authorized the Council on Elementary and Secondary Education to: (a) “adopt standards and require enforcement and to exercise general supervision over all elementary and secondary public and nonpublic education in the state...” R.I. Gen. Laws § 16-60-4(a)(2); and (b) maintain a department of elementary and secondary education (RIDE). See id. at (a)(6).
Thus, it is within the legal authority of the School Committee to mandate that all students and staff in the District wear face masks when in school during the COVID-19 pandemic as part of their “care, control and management” of public schools in the District which does not conflict with some more specific provision enacted by the Council, RIDE, or alternatively, with applicable federal law. In fact, the general mandate is in accord with relevant state and federal guidelines, see § II, ¶¶ 3-6, supra at 4-5, and although it is not RIDE’s prerogative to secondguess, or even to comment upon, the judgment of RIDOH or the CDC on matters of public health, it is worth noting that there is a scientific consensus that wearing face masks inhibits the spread of COVID-19.[11] Indeed, this consensus remains despite the fact that, as noted by Brooke Nichols, an infectious disease modeler at the Boston University School of Public Health, the data seems to be confirming that “children are not, in fact, driving transmission, especially in school settings.”[12]
Finally, Petitioners’ argument that the Policy’s face mask mandate is overbroad is premised upon their assumption that first-graders are able to maintain social distancing at all time while in school. Yet, the less optimistic assumption as to typical student behavior which appears to underlie the School Committee’s broad face mask mandate is hardly irrational. Moreover, as noted, the policy is supported by a scientific consensus concerning the efficacy of face masks. See note 11, supra. Thus, Petitioners’ overbreadth argument is not persuasive.[13]
2. Proper Procedure under Section 504 and the ADA
The First Circuit has noted that “[t]here is no significant difference in the analysis of rights and obligations created by Section 504 [of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794] and Title II [of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131–12134].” Pollack v. Regional School Unit 75, 886 F.3d 75, 81, n.2 (1st Cir. 2018). In addition, the Circuit has clarified that while there is some overlap between the protections afforded under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq., on the one hand, and Section 504 and the ADA on the other, Section 504 and the ADA “cast a much wider net than the IDEA.” Pollack, supra, 886 F.3d at 81.
The U.S. Department of Education offered general guidance on the requirements of Section 504 and the ADA in the elementary and secondary school context in a January 19, 2012 Dear Colleague Letter (the “Letter”).[14] The first question a Section 504 team must answer is whether the student suffers from a qualifying impairment or disability. As noted in the Letter and the implementing federal regulations, “Section 504 and the ADA define disability as: (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment.” Id. at 5, citing 29 U.S.C. § 705(9)(B) and 42 U.S.C. § 12102(1).[15]
If the conclusion is that the student does suffer from a disability or impairment, or is so regarded, the second question is whether the impairment affects a student’s ability to learn. And as noted in the Letter, “a student’s use of mitigating measures could be relevant in determining whether the impairment affects his or her ability to learn,” i.e., whether the student needs special education or related services. See id. And finally, if the answer to the second question, above, is yes, the third and final question is what is needed to ensure that the student has equal opportunity to participate in school. However, the Letter also provided that “[i]f, as a result of a properly conducted evaluation, the school district determines that the student does not need special education or related services, the district is not required to provide aids or services.” Id. at 9.[16]
Clearly, not all children who suffer from asthma have a qualifying impairment, and even if they do, not all require additional services of accommodations. As noted by the U.S. Department of Education:
... suppose a student is diagnosed with severe asthma that is a disability because it substantially limits the major life activity of breathing and the function of the respiratory system. However, based on the evaluation, the student does not need any special education or related service as a result of the disability. This student fully participates in her school’s regular physical education program and in extracurricular sports; she does not need help administering her medicine; and she does not require any modifications to the school's policies, practices, or procedures. The school district is not obligated to provide the student with any additional services. The student is still a person with a disability, however, and therefore remains protected by the general nondiscrimination provisions of Section 504 and Title II. See id.[17]
However, in the context of the COVID-19 pandemic, the U.S. Department of Education’s Office for Civil Rights (the “OCR”) has stated that: (a) “enforcing a face covering requirement could impede the child’s ability to receive the FAPE required by Section 504.” See OCR’s Questions and Answers for K-12 Public Schools in the Current COVID-19 Environment (“OCR FAQ’s”) (September 28, 2020) at 3;[18] and (b) “[s]chools must continue to meet the requirements of Section 504, consistent with the need to protect the health, safety, and well-being of students, school staff, and other individuals responsible for providing special education and related aids and services to students with disabilities.” Id. at 4. Moreover, as noted, the CDC has opined that individuals who have moderate or severe asthma may have a higher risk of becoming very sick from COVID-19, see § II, ¶ 6, supra at 6, and RIDE and RIDOH have made clear in guidance that “[m]asks should NOT be worn by kids... who have trouble breathing,” see id., ¶ 4, supra at 4-5.
Thus, if a parent claims that their child suffers from asthma, has trouble breathing while wearing a mask while in class, and requests an accommodation, a Section 504 team should be convened, whether or not: (a) a note from a physician has been provided; or (b) the parent knows enough to specially mention Section 504.[19] The team would then need to determine whether the child had a qualifying impairment that affected his ability to learn.
In terms of what accommodations might be necessary, an accommodation is not reasonable if it imposes an undue burden on the public entity or requires it to substantially alter its program. 28 C.F.R. § 35.130(b)(7)(i); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003)) (explaining that a reasonable accommodation is defined as “one that gives the otherwise qualified plaintiff with disabilities ‘meaningful access' to the program or services sought”). As the Ninth Circuit noted in Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002), “[r]easonableness ‘depends on the individual circumstances of each case, and requires a fact-specific, individualized analysis of the disabled individual's circumstances and the accommodations that might allow him to [enjoy meaningful access to the program.]’” Id. (citation omitted). And as noted by the OCR in the context of COVID-19, whether or not an individual unable to wear a face covering poses a direct threat to the health and safety of others:
... will depend on an individualized assessment of the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures or the provision of auxiliary aids or services will mitigate the risk. See OCR FAQ’s, supra, at 3, n. 6, citing § 28 C.F.R. 35.139(a).
3. The Policy’s Requirement of a Physician’s Note
In addition to the general face mask mandate, the CSD Policy at issue here also provides that “a 504 team will be convened and an appropriate plan will be developed” only in the event a “physician’s note indicates an underlying condition/impairment which would impact the individual student/staff member wearing a face covering.” See§ II, ¶ 14 supra at 8, quoting the Policy. However, conditioning the convening of a Section 504 team upon the production of a physician’s note is a violation of Section 504, as should be apparent from the above discussion.
Thus here, assuming that the School had been alerted by Mr. and Mrs. Doe that M. Doe suffered from asthma and had trouble breathing with a face mask on while in class, a Section 504 team – which may (and likely should) include Mr. and Mrs. Doe – should have been convened to determine whether the alleged condition constituted a qualifying impairment, i.e., an impairment that “substantially limits a major life activity,” or whether there was “a record of such an impairment,” or whether M. Doe was “regarded as having such an impairment.” See supra at 12. This task is complicated here by the fact that it appears that M. Doe’s pulmonologist has a policy of not providing notes to schools with respect to the wearing of masks. However, in the absence of such a note, medical records detailing M. Doe’s history of asthma coupled with information provided by Mr. and Mrs. Doe should enable the team to perform this initial task.
If the conclusion is that M. Doe’s asthma does present a qualifying impairment in the context of COVID-19, the Section 504 team would then have to decide whether the impairment affects M. Doe’s ability to learn, and finally, whether an accommodation is possible. In short, it is for the Section 504 team to determine in the first instance whether it is reasonable to rely upon a first-grader’s ability to socially distance while in class and throughout the school day in lieu of strictly enforcing a face mask requirement, and whether the Petitioners’ offer to pay for the installation of a plexiglass barrier was feasible and would be effective.
4. Conclusion
This decision makes clear that conditioning the convening of a Section 504 team upon the production of a physician’s note is a violation of Section 504. However, in the absence of a hearing or evidentiary record, no factual findings have been made as to what procedures the School actually followed after being informed of M. Doe’s history of asthma and difficulty breathing with a mask while in class. Thus, this decision does not find that the School failed to follow proper procedures, but merely articulates the procedures that the School should follow if it has not already done so.
V. Order
For all of the above reasons, Mr. and Mrs. Doe’s Petition on behalf of their son is granted, in part, without prejudice to whatever right they may have to a hearing as to allegations not actually decided herein, and
IT IS HEREBY HELD:
That portion of Cranston School Committee Policy 4085 which requires that a physician’s note be provided as a condition precedent to the convening of a Section 504 team violates Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and
Respondent, Cranston Public School Committee, IS HEREBY ORDERED:
To forthwith take whatever action is necessary to strike and remove the above described provision, and that provision only, from its Policy 4085; and
Unless it has not already done so, Respondent, Cranston Public School District, IS HEREBY ORDERED:
To forthwith convene a Section 504 team and determine whether Student M. Doe has a qualifying impairment under Section 504, and if so, whether that impairment affects M. Doe’s ability to learn, and finally, if his ability to learn is affected, to determine whether an accommodation is feasible.
Footnotes
[1] Needless to say, legal counsel for the CSD also participated in the conference call.
[2] Although this statement appeared in a guidance document, it reflected the prohibitions contained in the Governor’s E. O. 20-58 dated July 29, 2020 prohibiting “indoor social gatherings of more than fifteen (15) people in any public or private space,” with any exceptions subject to “strict adherence to social distancing, masking, screening and sanitation protocols.” See id., ¶¶ 6, 8 at 3-4.
[3] https://www.back2schoolri.com/answering-your-questions/
[4] https://www.back2schoolri.com/wp-content/uploads/2020/09/COVID19_3Ws_091020-FINAL.pdf
[5] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html#not-wear [cdc.gov]
[6] https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#asthma.
[7] It should again be emphasized that other than the basic allegation that their son suffered from asthma and had difficulty breathing with a face mask on while in class, which the CSD has not denied, the remaining allegations remain mere allegations as there has been no evidentiary hearing and the School’s version of the facts has not been presented. It also should be repeated that the factual recitation herein is not intended to encompass all of the Petitioners’ allegations, but merely provides some useful factual background and context.
[8] Distance learning has been offered as an option to all students throughout the State during the pandemic.
[9] Yet, according to Mr. and Mrs. Doe, M. Doe was permitted to ride his school bus without wearing a mask.
[10] The Policy also provided that:
- Students who refuse to wear a face-covering that covers their nose and mouth shall engage in a meeting with school staff and the students' families to build an appropriate plan, which will include mandatory distance learning, to support the student and the family to ensure compliance with this policy.
- Face covering breaks should occur throughout the day, as determined by the principal and where appropriate social distancing can be maintained. Breaks should occur when students can be consistently six or more feet apart and ideally outside or at least with the windows open.
- Designated district personnel shall work with all students to build up their tolerance for wearing face coverings. Face coverings are not required when eating breakfast, during snack time, and lunch time. During those times face coverings may be removed and social distancing guidelines should be followed.
- Non-compliant students will be required to attend distance learning environments.
- These requirements may be incorporated into the Student Discipline Code.
- Non-compliant staff may be subject to discipline.
- Non-compliant third parties shall not be allowed to enter school facilities or attend school events.
Id. at 1-2.
[11] See, e.g., Caitlin McCabe, Face Masks Really Do Matter. The Scientific Evidence Is Growing. (Wall Street Journal, August 13, 2020), https://www.wsj.com/articles/face-masks-really-do-matter-the-scientific-evidence-isgrowing-11595083298; A consensus is finally emerging on masks (Axios, July 15, 2020), https://www.axios.com/face-masks-coronavirus-consensus-9a40643d-fc73-4b5f-a5be-6b89f63db03e.html; and Tina Hesman Saey, Why scientists say wearing masks shouldn’t be controversial (Science News, June 26, 2020), https://www.sciencenews.org/article/covid-19-coronavirus-why-wearing-masks-controversial
[12] See Apoorva Mandavili, Schools Aren’t Driving Outbreaks, Scientists Say (New York Times, October 24, 2020) at A4.
[13] Whether Policy 4085 should include some provision for exceptions to the face mask policy other than those potentially available under Section 504 was not raised nor implicated by the relevant facts. Thus, the issue is not addressed herein.
[14] https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201109.html
[15] It also was noted that “in the phrase ‘a physical or mental impairment that substantially limits a major life activity,’ the term ‘substantially limits’ shall be interpreted without regard to the ameliorative effects of mitigating measures, other than ordinary eyeglasses or contact lenses.” Id., citing 42 U.S.C. § 12102.
[16] For further information about the Section 504, see Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, at http://www.ed.gov/about/offices/list/ocr/504faq.html.
[17] It also should be noted that federal preemption dictates that the statutorily mandated, individualized health care plans (the “IHCPs”) – i.e., the “comprehensive plan for care of children with special health care needs developed by the certified school nurse teacher in collaboration with the student, parents/guardians, school staff, community, and health care provider(s), as appropriate,” see RIDOH’s Regulations with respect to School Health Programs (the “RIDOH Regs.”), 216 R.I. Admin. Code 20-10-4.3 (32) – and “emergency care plans” (“ECP/EHCP”) – i.e., the “set of procedural guidelines that provides specific directions about what to do in an emergency,” see id. at 216 R.I. Admin. Code 20-10-4.3 (22) – are not a substitute for the procedures mandated under Section 504, although the RIDOH Regs. provide that the converse is not true, i.e., “[t]he IEP or 504 Plan may serve as the IHCP or ECP/EHCP if it meets all the requirements stated in this Part.” See id. at 216 R.I. Admin. Code 20-10-4.9.
[18] https://www2.ed.gov/about/offices/list/ocr/docs/qa-covid-20200928.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
[19] See 34 C.F.R. 104.3(j)(1); see also Quadir v. New York State Dep’t of Labor, 39 F.Supp.3d 528, 539-40 (S.D.N.Y. 2014) (The duty of an employer under the ADA to determine what accommodations would be reasonable does not end with “taking [a] new doctor's note at face value”... but rather “regulations issued pursuant to the ADA, which are informative to resolution of claims under the Rehabilitation Act, contemplate an ongoing, informal, and interactive process that “should identify the precise limitations resulting from the impairment and potential reasonable accommodations that could overcome those limitations,” citing 29 C.F.R. § 1630.2).
ANTHONY F. COTTONE, ESQ.,
as Hearing Officer for the Commissioner
ANGÉLICA INFANTE-GREEN,
Commissioner
Dated: October 29, 2020