‘Not in Compliance’

Both the Pa. Departments of Health and Education reaffirmed their position that permitting a parent-only sign-off on mask exceptions is not in compliance with the state order

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WARREN, Pa. – Both the Pennsylvania Department of Health and Department of Education consider mask exception stances, like the one the Warren County School District took Monday, to be out of compliance with the state’s indoor mask order.

Both state agencies—in separate emails to yourdailylocal.com—said that school entities that allow parents to claim, without evidence, that the student has a medical or mental health condition that exempts the student from wearing a face covering are “not in compliance” with the state order.

“Any school entity simply permitting a parent’s sign-off without evidence that the student has a medical or mental health condition or disability that precludes the wearing of a face covering is not in compliance with the Order,” DOH Press Secretary Mark O’Neill said.

“There are exceptions to the masking order, but a parent’s opposition to the order is not one of them,” PDE Press Secretary Kendall Alexander added.

During the Sept. 13, 2021 regular meeting, the WCSD Board of Directors approved a motion that allowed parents to sign an exception form stating their child qualified for a mask exception that does not require substantiation from a medical or mental health professional.

The motion passed despite three solicitors’ advice that the district should not take the action.

“We’ve spoken with three solicitors,” Donna Zariczny, the Board President, said. “Our human resource solicitor, our student service solicitor and our general solicitor, and not one of our solicitors are recommending this direction. I think we should uphold the laws and the regulations that are put before us, because as a legislative body. That’s what we’re supposed to do.”

The “recommended action”, put forth by board member Arthur Stewart, a lawyer himself, disagreed with the solicitors.

Presented as a “Letter announcing compliance with the DOH order,” the measure stated that if wearing a face covering “causes or exacerbates a medical or mental condition” an exception form must be submitted to the district.

“At the current time the order does not state a requirement that the medical or mental condition must be substantiated by a medical professional,” the letter states. “However, in the future, if the Order is modified to require substantiation by a medical professional it will be necessary for you to provide that substantiation in order to continue the exception.”

Both PDE and DOH disagreed with the assertion that the order doesn’t require substantiation by a medical professional for exceptions.

“School entities should follow their established processes for determining student eligibility under (Section 504 of the Rehabilitation Act or IDEA), including any medical documentation that they would normally require,” Alexander said.

“Schools are to use their existing policies and procedures to handle exemptions,” O’Neill said. “This documentation may include a form from a qualified practitioner with a treatment relationship with the student.”

During Monday’s meeting, board member Mary Passinger argued the board members, and district administration and teachers could open themselves to a potential lawsuit, or termination for staff and administration, down the line by adopting the resolution.

PDE issued a similar warning in a letter to a Commonwealth district that was “flagrantly violating” and that “did not intend to comply” with the state order.

“Failure to implement and follow the control measures under the Order subjects a person, which includes you as a member of the governing board, to the penalty provisions of the Disease Prevention and Control Law of 1955,” the PDE letter said. “A violation occurs each day there is a violation and may be charged for each student or staff member attending the school.”

O’Neill made it clear that failure to adhere to the state order could result in a loss of “sovereign immunity” and open district officials to face personal lawsuits.

“School officials who fail to adhere to the order could lose the protection of sovereign immunity and may personally face lawsuits from those who may be affected by any official’s attempt to ignore the order,” O’Neill said. “Failing to implement or follow the control measures may expose individuals to personal liability under 42 Pa.C.S § 8550 (relating to willful misconduct), as well as other remedies as provided by law.”