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District 49 says it won’t report COVID cases even though Colorado law requires it

A child winces as he gets swabbed for a COVID test. He’s wearing a baseball hat and mask.
Positive COVID cases must be reported to local public health authorities under Colorado law.
Photo by Chong Voon Chung/Xinhua via Getty Images

Saying the risks of quarantine outweigh the risk of disease, a Colorado school district insists it won’t report COVID cases to local public health authorities, even though state officials say the law requires it.

“It is our judgement, backed by months of student and community observation and interaction, with corresponding experiential data, that the risks of quarantine far outweigh the risks of the disease,” District 49 CEO Peter Hilts wrote in a communication to families Thursday. “That is why we will not facilitate voluntary reporting and contact tracing that are designed to direct healthy individuals into quarantine and isolation.”

Hilts initially laid out his approach to COVID this school year in a memo in early August, as well as in a briefing to the school board, as first reported by the Colorado Springs Gazette. After leading his school district through the 2020-21 school year, Hilts concluded that too many students had to quarantine and that frequent switches to online learning were bad for students.

“Our experience last year was that quarantines were almost a reflexive response to any report [of COVID], verified or second hand, suspected or confirmed,” Hilts told Chalkbeat. “We sent thousands of students into quarantine who never got sick and in some cases they missed weeks of instruction.”

But when Chalkbeat asked Gov. Jared Polis about the district’s decision at a press conference Wednesday, he said schools must report COVID cases: “That is the law and that is unambiguous.”

State Epidemiologist Rachel Herlihy reiterated that point at a separate press conference Thursday and again in an interview with Chalkbeat.

“State statute and state regulations outline that cases of reportable conditions, as well as suspected and confirmed outbreaks, are required to be reported by law,” she said. “So that would be an expectation.”

Throughout the pandemic, there has been tension between state authority and local control when it comes to COVID protocols. Many superintendents chafed under state quarantine rules and blamed them for challenges in maintaining in-person learning, even as other school leaders said the state had not provided enough guidance and left too much up to school districts that lacked public health expertise.

This year, Polis has let the state of emergency that granted him extra authority lapse and given school districts authority over everything from masks to quarantines, while also relaxing many regulations. But state health officials say that doesn’t extend to reporting of communicable diseases.

Colorado, like other states, maintains a long list of contagious reportable diseases, from anthrax and plague to measles and chickenpox. Laboratories need to inform public health authorities when they identify positive cases. So do physicians and people in charge of schools and licensed day care centers.

Not reporting a known case of these communicable diseases is a misdemeanor that carries potential fines and jail time, Herlihy said, though it’s very rare for the state or local authorities to pursue criminal charges.

“I’m hoping that there is a misunderstanding there,” Herlihy told Chalkbeat. “We would want to ensure they recognize the requirements in the statute and what their obligations are.”

Schools also have to report suspected or confirmed outbreaks, defined as five or more cases from separate households in the same classroom or activity in a two-week period. Hilts said the district is complying with this requirement.

The reason for this, Herlihy said, is to identify patterns of disease transmission and help public health agencies intervene early on.

“The risk would be that ongoing transmission could occur without people knowing,” Herlihy said.

When laboratories report cases, they provide the name, date of birth, and address of the person who tested positive. Public health officials might know right away that a school-aged child has tested positive, but they wouldn’t know what school that person attended until they were able to interview the family. When cases are increasing rapidly and contact tracers are overwhelmed, it might take even longer to realize there are multiple cases at a single school.

“It is quite possible that school officials would be the first to know about a cluster,” Herlihy said.

State public health officials said they are not aware of other districts taking District 49’s approach, but Hilts said he talks regularly with other superintendents and believes his district is not alone.

The state’s published guidance for schools is more ambiguous than rules and statute.

“If school personnel perform and interpret rapid testing on-site, they are functioning as a clinical lab and are required to report all results,” Colorado’s Practical Guide to Operationalizing CDC’s School Guidance reads. “Schools and child care facilities are also encouraged to report single cases of which they become aware to their local public health agency, even if testing was performed elsewhere.”

This wording — “encouraged to report” — also appears on the website of El Paso County Public Health, which oversees District 49. A spokeswoman for the county health department said her agency hopes the state clarifies its guidance soon.

A spokesman for the Colorado Department of Public Health and Environment said the guidance would be revised to align with state public health rules that require reporting.

Hilts said the district has consulted with legal counsel and believes its policy is within the law. However, he said he’s open to new information and making adjustments.

“The cases are reported” by the laboratory or a medical provider, Hilts said. “Our challenge is whether it is our responsibility to report it. I’m not concerned that we are going to conceal or mask COVID positive cases.”

Hilts said the district still consults regularly with public health and will still inform families and staff if they had close contact with someone who tested positive for COVID. However, schools will not help with contact tracing or enforce quarantines.

In his communication to families, Hilts said El Paso County Public Health is still directing students and staff to quarantine, even though Polis said Wednesday that districts can decide whether to follow quarantine guidance.

“The contradiction between the governor and county messaging creates ambiguity, which we resolve by exercising local leadership,” he wrote.

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