Florida Department of Health looks to cement rule on masks, quarantining in schools

TALLAHASSEE, Fla. - The Florida Department of Health on Friday proposed a long-term rule to try to prevent school mask mandates and give parents more authority to decide whether children who have been exposed to COVID-19 should be able to attend school.

The department published the proposed rule as it tries to fend off a legal challenge from six school districts to an emergency version of the rule issued last month.

The challenge, brought by the school boards in Miami-Dade, Broward, Orange, Duval, Alachua and Leon counties, includes allegations that the department improperly imposed the controversial COVID-19 measures on an emergency basis, rather than going through a regular rulemaking process that includes giving notice and potentially holding a hearing.

Attorneys for the school boards wrote in the challenge, filed Oct. 6, that "the public was given no notice or opportunity to be heard at all prior to the adoption of the DOH (Department of Health) rule."

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"The DOH rule fails to provide an explanation justifying the emergency enactment that is explicit or persuasive, and no explanation for the utter lack of notice or opportunity to be heard during the weeks prior to the adoption of the DOH rule," the challenge said.

The proposal published Friday in the Florida Administrative Register and the emergency rule issued Sept. 22 are identical on two key issues: allowing parents to opt their children out of school mask requirements and allowing children to attend school if they have been exposed to COVID-19 but are asymptomatic.

(File photo via Hillsborough County Public Schools/September 2021)

Under state law, emergency rules generally cannot be in effect for more than 90 days. A public hearing could be held on the newly published proposal if the department receives a request within three weeks.

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The department’s moves are rooted in a July 30 executive order that Gov. Ron DeSantis issued to try to block student mask mandates. DeSantis contends that parents should be allowed to decide whether their children wear masks during the pandemic.

The department initially released an emergency rule Aug. 6 but issued a revised emergency rule Sept. 22 after some school districts required parents to provide documented medical reasons for children to opt out of mask requirements.

The Sept. 22 version --- and the proposed rule published Friday --- said opting out of mask requirements is "at the parent or legal guardian’s sole discretion," which effectively seeks to prevent districts from requiring medical reasons.

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Also, the revised emergency rule and the new proposal seek to restrict the ability of districts to require quarantining of students who have been exposed to COVID-19. They said parents have the option of allowing the "student to attend school, school-sponsored activities, or be on school property, without restrictions or disparate treatment, so long as the student remains asymptomatic." The option does not apply to children who have COVID-19 symptoms, under the emergency rule and proposed rule.

Along with objecting to the emergency nature of the Sept. 22 rule, the challenge by the school boards contends the department has overstepped its legal authority on the mask and quarantine issues. Administrative Law Judge Brian Newman has scheduled a two-day hearing to start Thursday.