Adopting a mask or face covering policy

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What factors do school leaders have to consider when adopting a mask or face covering policy in their school district?


Governor Gianforte has announced that the statewide mask mandate will no longer be in effect as of February 12, 2021. In response to this announcement, the MT-PEC partners have prepared an update to Model Emergency Policy 1905 to provide an option for districts to adopt a district policy regarding face coverings while removing language requiring masks or face coverings in certain counties that was required due to then-Governor Bullock’s directive. Specifically, the language in Policy 1905 has been replaced with two options regarding face coverings: o o o

Option 1 is a mask requirement adopted by the board of trustees that will apply to staff, students, and visitors present in school buildings or events along with accepted exceptions to the mask requirement. Option 2 is language stating those present in the school may choose to wear a mask in a school building, but it is not required Option 3 is language stating those present in specific buildings which serve students of a specific age or grade group are required to wear a mask while those present in other buildings that do not serve those students of those specific ages or grades have the option of wearing masks. Board of Trustees may select Option 1, Option 2 or Option 3 when revising MTSBA Model Policy 1905.

The Governor’s directive does not restrict the authority of local governments to implement mask mandates that are more restrictive than the new state directive. County boards of health have statutory authority to impose restrictions within the exterior boundaries of the county to slow the spread of communicable diseases. If a county board of health adopts a directive requiring masks be worn in public buildings, public schools within that county will be obligated to honor the directive. Boards may adopt a customized version of Option 1 that reflects a county’s mandate. It is important to note that a recommendation from a county health board is not a directive and does not have the binding authority of the law. If a county board of health does not issue a directive, a public school, as a local government, may decide to implement a face covering requirement through the school board’s adoption of a policy governing that specific school district by adopting Option 1 in Policy 1905. The Governor’s Office stated on February 11, 2021, that local school districts may pursue this option in an email correspondence, “(The) directive allows local jurisdictions, including local school boards, to implement their own mask requirements.” Documentation of this correspondence is attached. This statement supports school board authority to adopt a mask mandate as a local government. A board adopted policy will help in the event there is a general challenge to a boardadopted mask requirement. The statement from the Governor’s Office clarifying the state directive will be an important element of defending against any challenge to a district mask mandate. This is consistent with inherent authority school boards hold under Article 10, section 8 of the Montana Constitution to exercise supervision and control over the school district. Under this authority, if there is a challenge in the courts, the district has the basis to assert the mask rule is subject to the “substantially related” test established by the Montana Supreme Court State, ex rel., Bartmess v. Helena Board of Trustees. In the event of such a challenge, the district would argue the mask rule is reasonable given the board’s requirement to adopt policies addressing student health issues as required by ARM 10.55.701(2)(s). Further, Section 20-3-324, MCA, states boards of trustees shall open schools, employ staff, and adopt policies required by the Board of Public Education. The Board of Public


Education requires adoption and implementation of policies regarding student health issues. School districts can argue faithfully that a mask requirement is consistent with and substantially related to their powers and duties under state statute and the Montana constitution. While legal outcomes are never certain, the district will have a stronger argument in support of a district mask requirement with a board-adopted policy. If a school board adopts a mask requirement policy, the next issue is will be whether it is enforceable on students, staff, and visitors. Section 20-5-201, MCA, requires students to comply with the policies of the district and directives of the district staff. Students will be expected to comply with the policy if adopted by the board of trustees. Staff and visitors will also be expected to comply. ARM 10.55.701(2)(d) requires boards to adopt policies delineating the responsibilities of staff in the district. MTSBA Model Policy 5121 applies all policies to all staff when applicable. Further an employment contract will bind a staff member to the policies of the district. Staff may also be subject to a MOA that requires employees who are covered by a collective bargaining agreement to wear masks in accordance with CDC guidance. Visitors will also be expected to comply. MTSBA Model Policies 4315 and 4332 govern visitor conduct and state those in the school will comply with the policies of the district. Policy 1903F can be posted at the entrance of the school notifying visitors of expectation to wear masks. School leaders must be mindful that if no mask mandate is in effect it could also result in claims against the district. Section 10-3-111, MCA, states that personnel in a school district are immune from suit during an emergency except in cases of “willful misconduct, gross negligence, or bad faith.” Failure to impose a mask mandate despite guidance from public health officials to do so could satisfy this exception and result in the loss of this immunity. This interpretation is consistent with the guidance from Montana State Fund which states that an employee may file a workers’ compensation claim if they can “demonstrate that their job put them at significantly greater risk for infection than the risk they have already through daily contact and exposure with the population in general.” A school district that does not have a mask requirement can also be considered to meet this standard. In anticipation of these claims, districts can consider adopting Option 1 in Policy 1905. If a district adopts Option 1, there are reasonable exceptions to a mask requirement included. These exceptions can be tailored to a district’s specific needs and enforced as deemed necessary by the board and administration. A district may also face questions from those who are concerned about the district adopting a mask rule. A district can accommodate those who may object to a mask or have a medical issue related to mask usage. This accommodation could include teleworking for staff, offsite instruction for students, remote meetings for parents, or electronic correspondence or communication for a visitor. In this situation, a district should handle requests to not wear a mask on an individual basis that reflect the circumstances in the district, but the mask policy will be enforced as adopted by the board. Option 2 is consistent with the Governor’s decision to lift the statewide mask mandate. Boards adopting this option authorize each employee, student, family or visitor to make a personal decision about wearing a mask in a school building or school event. Boards considering this option should take into account any county mask mandate, applicable MOAs with collective bargaining units, and rules governing high school activities that may require masks at certain events or for certain people. Further, a shift from a policy requiring masks to policy making masks optional could result in a claim that the District has unilaterally changed the working conditions. To avoid this claim, schools should be prepared to bargain this issue with unions and document any agreement in another MOA. The Board should also review other emergency policies including Policy 1903F to ensure they reflect the new optional mask provision.


If no mask mandate is in effect at the school under Option 2, there may be some students and staff who are not comfortable being present in the school. A school district remains obligated to provide a reasonable accommodation to a person with a disability, under either the Americans with Disabilities Act or Section 504 of the 1973 Rehabilitation Act. If a district recommends, but does not require masks, a district will have to determine how to reasonably accommodate a staff member or a student that is, due to an underlying disability, at risk for serious complications from COVID-19. MTSBA Model Emergency Policies 1908 and 1909 can be used as a guide in this area. Option 3 relies on a district’s authority to implement a mask rule under state law for specific age or grade groups in identified buildings. Regardless of whether a board adopts a mask requirement or a permissive mask option, the MT-PEC partners are prepared to assist districts in assessing requests for accommodations by those affected. The model policies on this topic are attached. A summary of the statutes and regulations is included below. Please contact the MT-PEC partners If we can be of further assistance. A summary of the legal authority cited in this analysis is available at the end of this document.


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____________ School District COVID-19 Emergency Measures

1905

Student, Staff, and Community Health and Safety The School District has adopted the protocols outlined in this policy during the term of the declared public health emergency to ensure the safe and healthy delivery of education services provided to students on school property in accordance with Policy 1906, and a safe workplace when staff are present on school property in accordance with Policy 1909, and the safety, health and well-being of parents and community members. The supervising teacher, principal, superintendent or designated personnel are authorized to implement the protocols in coordination with state and local health officials. Symptoms of Illness Students and staff who are ill, feeling ill, diagnosed as ill, or otherwise demonstrating symptoms of illness must not come to school or work. Students who have a fever or are exhibiting other signs of illness must be isolated in a designated area until such time as parents or caregiver may arrive at the school to retrieve the ill student. All surfaces and areas should be thoroughly cleaned and disinfected once the student has vacated the area by staff utilizing safety measures in accordance with state and/or local health standards as applicable. Students may engage in alternative delivery of education services during the period of illness or be permitted to make up work in accordance with District Policy 1906. Staff members will be provided access to leave in accordance with District Policy 1911 or the applicable Master Contract or Memorandum of Understanding. Parents, guardians, or caregivers of students who are ill, feeling ill, diagnosed as ill, or otherwise demonstrating symptoms of illness must not be present at the school for any reason including but not limited events or gatherings or to drop off or pick up students excepted as provided by this policy. To avoid exposing others to illness, parents or caregivers who are ill must make arrangements with others to transport students to school or events, if at all practicable. If not practicable, parents, guardians or caregivers must not leave their vehicle during pickup or drop off and must arrange with District staff to supervise students in accordance with physical distancing guidelines in this Policy.

Physical Distancing (Boards must select option 1 or option 2) Option 1 Students, staff, volunteers, and visitors will maintain a six-foot distance between themselves and their colleagues and peers throughout the school day inside any school building, on school provided transportation, and on school property before and after school. Staff members will arrange classrooms and restructure courses, transportation services, and food service to meet this standard.

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Recess will continue as scheduled in accordance with physical distancing guidance without the use of playground equipment. Any other use of school playgrounds is strictly prohibited. Drop off and pick up of students will be completed in a manner that limits direct contact between parents and staff members and adheres to social distancing expectations around the exterior of the school building while on school property. Option 2 To the extent possible, elementary school courses will be delivered to the same group of students each day, and the same teachers will remain with the same group in the same separate and designated room each day. If physical distancing is not possible during meal service and courses delivered in a separate area such as the library, gymnasium, and music room, the service or course will be delivered in the designated classroom for each group of students. Recess and use of playgrounds during recess are permitted on an adjusted schedule to maintain appropriate student groupings. Transportation services will be provided in accordance with cleaning and disinfection procedures outlined in this policy. Secondary school courses will be delivered using a restructured bell system to minimize student interaction in common areas. Upon arriving in a classroom, secondary school students will be provided disinfecting wipes or disinfecting spray and disposable paper towel and time to clean their learning area or desk. Meal service for secondary students will be provided through a grab and go lunch that will be eaten in designated areas. Parent arrival times to drop-off and pick up students riding with parents and caregivers will be staggered in designated intervals by grade level through a schedule set by the supervising teacher or building administrator. Drop off and pick up of students will be completed in a manner that limits direct contact between parents and staff members and adhere to social distancing recommendations in the exterior of the building. Visitors to the school authorized by District Policy 1903 will maintain a six-foot distance between themselves and others. This distancing requirement does not apply to individuals who are a part of the visitor’s regular household isolation group when the group is authorized to present at the school facility.

Face Coverings as Personal Protective Equipment (Boards must select option 1, option 2, or option 3) Option 1- Required Face Coverings This provision is required due to the COVID-19 state of emergency declared by the Board of Trustees or other local, state or federal agency, official, or legislative body. This policy is adopted, implemented, and enforced in accordance with the supervisory authority vested with the Board of Trustees in accordance with Article 10, section 8 of the Montana Constitution and

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related statutes and regulations. The Board of Trustees authorizes the Superintendent to develop and implement procedures to enforce this policy. The School District requires all staff, volunteers, visitors, and school-aged students to wear a face covering, mask, or face shield while present in any school building, regardless of COVID19 vaccination status. The implementation of a face covering requirement is not based on the COVID-19 vaccination status of any person in accordance with state law. The District does not make decisions regarding access to or delivery of school services based on COVID-19 vaccination status in accordance with Policy 3413. The School District also requires all staff, volunteers, visitors, and school-aged students to wear a face covering, mask, or face shield while present at any outdoor school activity with fifty (50) or more people where physical distancing is not possible or is not observed. Face covering, mask, or face shield means disposable or reusable covering that covers the nose and mouth. The School District will provide masks to students, volunteers, and staff, if needed. If a student or staff member wears a reusable mask, the School District expects that the masks be washed on a regular basis to ensure maximum protection. Students, staff, volunteers, and visitors are not required to wear a face covering, mask, or face shield under this provision when: 1. consuming food or drink; 2. engaging in strenuous physical activity; 3. giving a speech, lecture, class presentation, course lesson, or performance when separated by at least six feet of distance from the gathering, class, or audience; 4. communicating with someone who is hearing impaired; 5. identifying themselves; 6. receiving medical attention; or 7. precluded from safely using a face covering, mask, or face shield due to a medical or developmental condition. The superintendent, building principal, or their designee shall request documentation from a health care provider when considering an exception to this provision for medical or developmental reasons. The School District will comply with all applicable disability and discrimination laws when implementing this provision. When students and members of the public are not present, staff may remove their face covering, mask, or face shield if they are at their individual workstation and six feet of distance is strictly maintained between individuals. If students are working in small groups, the students must be wearing face covering, mask, or face shield All points of entry to any school building or facility open to the public shall have a clearly visible sign posted stating the face covering, mask, or face shield requirement. Allegations of harassment of any person wearing or not wearing a face covering, mask, or face shield requirement will be promptly investigated in accordance with District policy. Failure or refusal to wear a face covering, mask, or face shield by a staff member or student not subject to an exception noted above may result in redirection or discipline in accordance with District policy and codes of conduct, as applicable.

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Option 2 – Optional Face Coverings Staff, students, and visitors may wear a face covering, mask, or face shield while present in any school building. The School District does not require the use of masks and will not provide masks except in cases required by this policy or at the discretion of the administration. Allegations of harassment of any person wearing or not wearing a face covering, mask or face shield shall be promptly investigated in accordance with District policy. A student, staff member, or visitor who, after an investigation, is found to have engaged in behavior that violates District policy is subject to redirection or discipline. OPTIONAL: If, after this section is adopted, the number of active COVID-19 cases in the county where the school district is located increases to the point of being considered a "substantial" or "high" rate of transmission as defined by the Centers for Disease Control (CDC), the Board of Trustees authorizes the superintendent to implement a requirement for face coverings to be worn in identified District buildings until such time as the Board of Trustees can adopt an applicable District policy. The superintendent shall coordinate with the county health department and Board Chair to determine whether face coverings are a necessary response to a potential or actual COVID-19 outbreak. The implementation of a face covering requirement in the identified buildings shall not be based on the COVID-19 vaccination status of any person in accordance with state law. The District does not make decisions regarding access to or delivery of school services based on COVID-19 vaccination status in accordance with Policy 3413. In the event face coverings are required, the superintendent shall announce the face covering requirement to students, parents, staff, and visitors for the immediate successive school day each day by 3:00 p.m. If the superintendent determines masks are required, signs will be installed to inform students, parents, staff, and visitors of mask requirements while present in the identified District buildings. In the event of a mask requirement, the following exceptions shall apply: Students, staff, volunteers, and visitors are not required to wear a face covering, mask, or face shield under this provision when: 1. consuming food or drink; 2. engaging in strenuous physical activity; 3. giving a speech, lecture, class presentation, course lesson, or performance when separated by at least six feet of distance from the gathering, class, or audience; 4. communicating with someone who is hearing impaired; 5. identifying themselves; 6. receiving medical attention; or 7. precluded from safely using a face covering, mask, or face shield due to a medical or developmental condition. The superintendent, building principal, or their designee shall request documentation from a health care provider when considering an exception to this provision for medical or developmental reasons. The School District will comply with all applicable disability and discrimination laws when implementing this provision.

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Option 3 – Required Face Coverings for Specific Schools and Groups | Optional Face Coverings in Other Buildings This provision is required due to the COVID-19 state of emergency declared by the Board of Trustees or other local, state, or federal agency, official, or legislative body. This policy is adopted, implemented, and enforced in accordance with the supervisory authority vested with the Board of Trustees in accordance with Article 10, section 8 of the Montana Constitution and related statutes and regulations. The Board of Trustees authorizes the Superintendent to develop and implement procedures to enforce this policy. The School District requires all staff, volunteers, visitors, and students in buildings serving students Option: Grades ____ | Option: Ages ____ to wear a face covering, mask, or face shield while present in the following buildings:___________, regardless of COVID-19 vaccination status. The School District also requires all staff, volunteers, visitors, and students in the identified buildings to wear a face covering, mask, or face shield while present at any outdoor school activity with fifty (50) or more people where physical distancing is not possible or is not observed. Face covering, mask, or face shield means disposable or reusable covering that covers the nose and mouth. The School District will provide masks to students, volunteers, and staff, if needed. If a student or staff member wears a reusable mask, the School District expects that the masks be washed on a regular basis to ensure maximum protection. Students, staff, volunteers, and visitors are not required to wear a face covering, mask, or face shield under this provision when: 1. consuming food or drink; 2. engaging in strenuous physical activity; 3. giving a speech, lecture, class presentation, course lesson, or performance when separated by at least six feet of distance from the gathering, class, or audience; 4. communicating with someone who is hearing impaired; 5. identifying themselves; 6. receiving medical attention; or 7. precluded from safely using a face covering, mask, or face shield due to a medical or developmental condition. The superintendent, building principal, or their designee shall request documentation from a care provider when considering an exception to this provision for medical or developmental reasons. The School District will comply with all applicable disability and discrimination laws when implementing this provision. When students and members of the public are not present, staff may remove their face covering, mask, or face shield if they are at their individual workstation and six feet of distance is strictly maintained between individuals. If students are working in small groups, the students must be wearing a face covering, mask, or face shield. All points of entry to any school building or facility open to the public shall have a clearly visible sign posted stating the face covering, mask, or face shield requirement. Staff, visitors, and students in buildings that do not serve students K-6 have the option of wearing a face covering, mask, or face shield while present in a school building other than those

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identified in this section. In the event staff or students visit a building where a face covering, mask, or face shield is required, the student or staff member will comply with that building’s requirements under this policy The implementation of a face covering requirement in the identified buildings is not based on the COVID-19 vaccination status of any person in accordance with state law. The District does not make decisions regarding access to or delivery of school services based on COVID-19 vaccination status in accordance with Policy 3413. Allegations of harassment of any person wearing or not wearing a face covering, mask, or face shield requirement will be promptly investigated in accordance with District policy. Failure or refusal to wear a face covering, mask, or face shield by a staff member or student not subject to an exception noted above may result in redirection or discipline in accordance with District policy and codes of conduct, as applicable. OPTIONAL: If, after this section is adopted, the number of active COVID-19 cases in the county where the school district is located increases to the point of being considered a "substantial" or "high" rate of transmission as defined by the Centers for Disease Control (CDC), the Board of Trustees authorizes the superintendent to implement a requirement for face coverings to be worn in District buildings until such time as the Board of Trustees can adopt an applicable District policy. The superintendent shall coordinate with the county health department and Board Chair to determine whether face coverings are a necessary response to a potential or actual COVID-19 outbreak. In the event face coverings are required for other buildings, the superintendent shall announce the face covering requirement to students, parents, staff, and visitors for the immediate successive school day each day by 3:00 p.m. If the superintendent determines masks are required, signs will be installed to inform students, parents, staff, and visitors of mask requirements while present in the identified District buildings. In the event of a mask requirement, the exceptions noted in this section shall apply. Cleaning and Disinfecting School district personnel will routinely both clean by removing germs, dirt and impurities and disinfect by using chemicals to kill germs on all surfaces and objects in any school building and on school property that are frequently touched. This process shall include cleaning objects/surfaces not ordinarily cleaned daily. Personnel will clean with the cleaners typically used and will use all cleaning products according to the directions on the label. Personnel will disinfect with common EPA-registered household disinfectants. A list of products that are EPA-approved for use against the virus that causes COVID-19 is available from the supervising teacher or administrator. Personnel will follow the manufacturer’s instructions for all cleaning and disinfection products. The District will provide EPA-registered disposable wipes to teachers, staff, and secondary students so that commonly used surfaces (e.g., keyboards, desks, remote controls) can be wiped down before use. Supervising teacher or administrators are required to ensure adequate supplies to support cleaning and disinfection practices. © 2021 MTSBA


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Student Arrival Hand hygiene stations will be available at the entrance of any school building, so that children can clean their hands before they enter. If a sink with soap and water is not available, the School District will provide hand sanitizer with at least 60% alcohol. Hand sanitizer will be kept out of elementary students’ reach and student use will be supervised by staff. A District employee will greet children outside the school as they arrive to ensure orderly compliance with the provisions of this policy.

Temperature Screening Designated School District staff are authorized to test the temperature of students with an approved non-contact or touchless temperature reader. Students who have a fever or are exhibiting other signs of illness must be isolated in a designated area until such time as parents or caregiver may arrive at the school to retrieve the ill student. All surfaces and areas should be thoroughly cleaned and disinfected once the student has vacated the area by staff utilizing safety measures in accordance with state and/or local health standards as applicable. When administering a temperature check on a possibly ill student, designated staff members will utilize available physical barriers and personal protective equipment to eliminate or minimize exposures due to close contact to a child who has symptoms during screening. Healthy Hand Hygiene Behavior All students, staff, and others present in the any school building will engage in hand hygiene at the following times, which include but are not limited to: • Arrival to the facility and after breaks • Before and after preparing, eating, or handling food or drinks • Before and after administering medication or screening temperature • After coming in contact with bodily fluid • After recess • After handling garbage • After assisting students with handwashing • After use of the restroom Hand hygiene includes but is not limited to washing hands with soap and water for at least 20 seconds. If hands are not visibly dirty, alcohol-based hand sanitizers with at least 60% alcohol can be used if soap and water are not readily available. Staff members will supervise children when they use hand sanitizer and soap to prevent ingestion. Staff members will place grade level appropriate posters describing handwashing steps near sinks.

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Vulnerable Individuals Vulnerable individuals (defined by the Centers for Disease Control at the time of this policy’s adoption as those age 65 or older or those with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy) are authorized to talk to their healthcare provider to assess their risk and to determine if they should telework during the period of declared public health emergency. Employees who have documented high risk designation from a medical provider are entitled to reasonable accommodation within the meaning of that term in accordance with the Americans with Disabilities Act and Section 504 as outlined in District Policy 5002. These accommodations may include but are not limited to teleworking in accordance with a work plan developed in coordination with and authorized by the supervising teacher, administrator or other designated supervisor. Such employees may also be eligible for available leave in accordance with the applicable policy or master agreement provision.

Food Preparation and Meal Service Facilities must comply with all applicable federal, state, and local regulations and guidance related to safe preparation of food. Sinks used for food preparation must not be used for any other purposes. Staff and students will wash their hands in accordance with this policy.

Transportation Services The Board of Trustees authorizes the transportation of eligible transportees to and from the school facility in a manner consistent with the protocols established in this policy. The transportation director and school bus drivers will clean and disinfect each seat on each bus after each use.

Public Awareness The School District will communicate with parents, citizens, and other necessary stakeholders about the protocols established in this policy and the steps taken to implement the protocols through all available and reasonable means.

Confidentiality

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This policy in no way limits or adjusts the School District’s obligations to honor staff and student privacy rights. All applicable district policies and handbook provision governing confidentiality of student and staff medical information remain in full effect. Transfer of Funds for Safety Purposes The Board of Trustees may transfer state or local revenue from any budgeted or non-budgeted fund, other than the debt service fund or retirement fund, to its building reserve fund in an amount not to exceed the school district's estimated costs of improvements to school and student safety and security to implement this policy in accordance with District Policy 1006FE. Legal Reference

Governor’s Directive Implementing Executive Order 2-2021 – February 12, 2021 Correspondence clarifying Governor’s Directive – February 11, 2021 Article X, section 8 Montana Constitution Section 20-3-324, MCA Powers and Duties Section 20-9-806, MCA School Closure by Declaration of Emergency 10.55.701(2)(d)(s) Board of Trustees State, ex rel., Bartmess v. Helena Board of Trustees, 726 P.2d 801

Cross Reference:

Policy 1901 – School District Policy and Procedures Policy 1903 – School District Events and Meetings Policy 1903F – School Events Notice Policy 1906 - Student Services and Instructional Delivery Policy 1907 – Transportation Services Policy 1006FE – Transfer of Funds for Safety Purposes Policy 3410 – Student examination and screenings Policy 3226 – Bullying and Harassment Policy 3417 – Communicable Diseases Policy 3431 – Emergency Treatment Policy 5015 – Bullying and Harassment Policy 1911 - Personnel Use of Leave Policy 1910 – Human Resources and Personnel Policy 4120 - Public Relations Policy 5002 – Accommodating Individuals with Disabilities Policy 5130 – Staff Health Policy 5230 - Prevention of Disease Transmission Policy 6110 – Superintendent Authority Policy 6122 - Delegation of Authority

Policy History: Adopted on: Reviewed on: Revised on: Terminated on:

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Documentation of Legal Authority of School Boards to Issue Mask Directives Per Direct Communication with Governor Gianforte’s Senior Staff From: Lance Melton <lmelton@mtsba.org> Sent: Thursday, February 11, 2021 9:18 AM To: Oppel, Glenn <Glenn.Oppel@mt.gov>; Milburn, Mike <Mike.Milburn@mt.gov> Subject: [EXTERNAL] Governor Gianforte's Plans for Dissolving Mask Directive Mike and Glenn, We are fielding lots of calls and contacts from members wondering about their options for continuing local mask directives once Governor Gianforte dissolves the statewide directive as expected tomorrow. Is there any possibility that the Governor would consider adding elected school boards among those with the authority to impose mask mandates? We have members with perspectives spanning the full continuum on this issue and we are hoping they will be granted continued authority in determining whether and how to implement mask requirements. I am confident that elected trustees will exercise that authority carefully and with the input of affected constituents and staff. It should also be noted that Senate Bill 65 provides immunity protection only to private entities and not to public schools. Having the option of requiring continued use of masks would provide school boards with a tool they may need to protect the district taxpayers from liability that could arise from the spread of COVID-19 within Montana’s public schools. Thank you for your consideration of this request. Lance L. Melton Executive Director Montana School Boards Association 863 Great Northern Blvd. Suite 301 Helena Montana 59601 406-495-2347 (direct line) 406-439-2180 (cell) From: Oppel, Glenn <Glenn.Oppel@mt.gov> Date: Thursday, February 11, 2021 at 9:43 AM To: Lance Melton <lmelton@mtsba.org>, Milburn, Mike <Mike.Milburn@mt.gov> Subject: RE: Governor Gianforte's Plans for Dissolving Mask Directive Let me get your note into the right hands here and we’ll get back to you. Thanks! Glenn Oppel, Policy Director, Office of Governor Greg Gianforte


--------- Forwarded message --------From: Kirk Miller <samkm@sammt.org> Date: Thu, Feb 11, 2021 at 9:54 AM Subject: Mask Mandate lifted and Impact on Schools - Consideration To: Milburn, Mike <MMilburn@mt.gov> Cc: samkm@sammt.org <samkm@sammt.org> Hi Mike, I'm just checking with you to see if you have received this correspondence from Lance, and to let you know that I'm getting numerous contacts from our school leaders very concerned about their school environment, staff and the impact on the community of lifting of the mask mandate at the state level. I agree with Lance's take on the local control of trustees, and also the liability schools will be exposed to with the change on the horizon. Please advise what you think. Thanks Mike. Kirk From: Milburn, Mike <Mike.Milburn@mt.gov> Sent: Thursday, February 11, 2021 10:50 AM To: Kirk Miller <samkm@sammt.org> Cc: Hall, Travis <Travis.Hall@mt.gov> Subject: RE: [EXTERNAL] Fwd: Mask Mandate lifted and Impact on Schools Consideration Thanks Kirk. It’s me. We just talked about Lance’s email at a staff meeting with the Governor. I am going to send this to our comm’s person for him to respond so it comes from one source. Thanks. I hope all is well with you. Mike


---------- Forwarded message --------From: Hall, Travis <Travis.Hall@mt.gov> Date: Thu, Feb 11, 2021 at 3:01 PM Subject: RE: [EXTERNAL] Fwd: Mask Mandate lifted and Impact on Schools - Consideration To: Milburn, Mike <Mike.Milburn@mt.gov>, Kirk Miller <samkm@sammt.org> Thanks, Mike. Kirk, happy to provide some clarity. As I understand it, the upcoming directive allows local jurisdictions, including local school boards, to implement their own mask requirements. Mike, will you please correct me if I’m wrong? Please let me know if you have any questions. Thanks, Travis Hall Senior Advisor and Director of Strategic Communications, Governor Greg Gianforte On Feb 11, 2021, at 4:21 PM, Milburn, Mike <Mike.Milburn@mt.gov> wrote: That is true. Thanks Mike From: Kirk Miller <samkm@sammt.org> Date: Thursday, February 11, 2021 at 4:38 PM To: Milburn, Mike <Mike.Milburn@mt.gov> Cc: Hall, Travis <Travis.Hall@mt.gov>, mt-pec <mtpec@mt-pec.org>, Kirk Miller <samkm@sammt.org> Subject: Re: [EXTERNAL] Fwd: Mask Mandate lifted and Impact on Schools - Consideration Thanks Mike and Travis. Kirk Kirk J. Miller, SAM Executive Director


Summary of Legal Authority for a School District Mask Mandate •

Governor’s Directive Implementing Executive Order 2-2021 – February 12, 2021

Correspondence with Governor’s Office clarifying Governor’s Directive – February 11, 2021

State, ex rel., Bartmess v. Helena Board of Trustees, 726 P.2d 801

Article X, Section 8: School district trustees. The supervision and control of schools in each school district shall be vested in a board of trustees to be elected as provided by law.

Definition of the basic system of free quality schools at 20-9-309(2)(h) preservation of local control of schools in each district vested in a board of trustees pursuant to Article X, section 8, of the Montana constitution.

Duties of Trustees 20-3-324: o (7) organize, open, close, or acquire isolation status for the schools of the district in accordance with the provisions of the school organization part of this title; o (21) retain, when considered advisable, a physician or registered nurse to inspect the sanitary conditions of the school or the general health conditions of each pupil and, upon request, make available to any parent or guardian any medical reports or health records maintained by the district pertaining to the child; o (30) perform any other duty and enforce any other requirements for the government of the schools prescribed by this title, the policies of the board of public education, or the rules of the superintendent of public instruction.

20-5-201. Duties and sanctions. (1) A pupil: o (a) shall comply with the policies of the trustees and the rules of the school that the pupil attends; o (b) shall pursue the required course of instruction; o (c) shall submit to the authority of the teachers, principal, and district superintendent of the district; and o (d) is subject to the control and authority of the teachers, principal, and district superintendent while the pupil is in school or on school premises, on the way to and from school, or during intermission or recess.

10.55.701 BOARD OF TRUSTEES o (1) The local board of trustees shall ensure that the school district complies with all local, state, and federal laws and regulations. o (2) Each school district shall make available to the staff and public: o (d) policies that delineate the responsibilities of the local board of trustees, superintendent, and personnel employed by the school district. The local board of trustees shall review these policies on a regular basis; o (s) a policy that addresses student health issues that arise in the school setting.

10-3-111. Personnel immune from liability.(1) The state, a political subdivision of the state, or the agents or representatives of the state or a political subdivision of the state are not liable for

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personal injury or property damage sustained by a person appointed or acting as a volunteer civilian defense or other response and recovery activity worker, a volunteer professional, or a member of an agency engaged in civilian defense or other response and recovery activity during an incident, disaster, or emergency. This section does not affect the right of a person to receive benefits or compensation to which the person might otherwise be entitled under the workers' compensation law or a pension law or an act of congress. (2) The following individuals or entities are not liable for the death or injury of individuals or for damage to property as a result of an act or omission specifically arising out of activities undertaken in response to an incident, disaster, or emergency and while complying with or reasonably attempting to comply with parts 1 through 4 and 12 of this chapter or an order or rule promulgated under the provisions of parts 1 through 4 and 12 of this chapter: (a) the state or a political subdivision of the state; (b) except in cases of willful misconduct, gross negligence, or bad faith: (i) the employees, agents, or representatives of the state or a political subdivision of the state; or (ii) a volunteer or auxiliary civilian defense or other response and recovery activity worker, a member of an agency engaged in civilian defense or other response and recovery activity, a volunteer professional, or the owners of facilities used for civil defense or other response and recovery shelters pursuant to a fallout shelter license or privilege agreement or pursuant to an ordinance relating to blackout or other precautionary measures enacted by a political subdivision of the state. •

Montana Workers' Compensation Coverage COVID-19 Frequently Asked Questions – March 19, 2020

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TO: FROM: DATE: RE:

All residents of Montana, including its State officers and agencies Governor Greg Gianforte February 12, 2021 Directive Implementing Executive Order 2-2021

Executive Order 2-2021 declares that a state of emergency exists in Montana due to the global outbreak of COVID-19. During a state of emergency, the Governor is authorized to suspend regulatory statutes, orders, or state agency rules that “prevent, hinder, or delay necessary action in coping with the emergency …,” MCA 10-3-104(2)(a), and to control “the movement of persons within the area …” Id. at 10-3-104(2)(c). “[A]ll officers and agencies shall cooperate with and extend their services and facilities to the governor as the governor may request.” The response to COVID-19 must by necessity be dynamic, informed by new information and medical solutions as they become available. In response to changing circumstances, I hereby rescind and replace all prior directives implementing Executive Order 2-2021 and direct the following measures be in place in the State of Montana effective immediately: GENERAL MASKING Individual responsibility remains Montana’s best tool to combat the spread of COVID-19. Montanans are encouraged to wear masks and should follow the best industry practices adopted by any business they visit to slow the spread of the virus. PHASED REOPENING OF MONTANA The phased approach to reopening Montana is no longer in force. PUBLIC GATHERINGS Any public gatherings or events should be managed in a way that accommodates the Center for Disease Control and Prevention (CDC) social distancing guidelines. BUSINESSES Businesses face diverse challenges in this emergency and need flexibility to serve their -1-


customers in a healthful environment. Therefore, businesses should make reasonable efforts to develop and implement appropriate policies based on industry best practices during this emergency. Where no such industry practices exist, such policies should be developed and implemented in accordance with federal, state, and local regulations and guidance regarding: 1) Masking; 2) Social distancing; 3) Temperature checks and/or symptom screening; 4) Testing, isolating, and contact tracing, in collaboration with public health authorities; 5) Sanitation; 6) Use of disinfection of common and high-traffic areas; 7) Teleworking. FOOD AND BEVERAGE INDUSTRIES The following places are permitted and encouraged to offer food and beverage using delivery service, window service, walk-up service, drive-through service, or drive-up service, and to use precautions in doing so to mitigate the potential transmission of COVID-19, including social distancing: Restaurants, food courts, cafes, coffeehouses, and other similar establishments offering food or beverage for on-premises consumption. Alcoholic beverage service businesses, including bars, taverns, brew pubs, breweries, microbreweries, distilleries, wineries, tasting rooms, special licensees, clubs, and other establishments offering alcoholic beverages for on-premises consumption. Cigar bars. Health clubs, health spas, gyms, aquatic centers, pools and hot springs, indoor facilities at ski areas, climbing gyms, fitness studios, and indoor recreational facilities. Movie and performance theaters, nightclubs, concert halls, bowling alleys, bingo halls, and music halls. Casinos. Customers may order and pay by telephone or online from a retailer or manufacturer licensed to sell alcoholic beverages in the State of Montana. A retailer or manufacturer licensed to sell alcoholic beverages in the state of Montana may deliver for sale the alcoholic beverages for which it is licensed. Delivery must be conducted by the licensee’s employees over the age of 21 and age of the purchaser and recipient must be verified at the time of delivery. The purchased alcohol must be hand-delivered to the purchaser. Consistent with the above, strict compliance with MCA §§ 16-3-101, -219, -243, and -418, and other applicable laws are waived pursuant to MCA § 10-3-104 and other applicable provisions of law. SCHOOLS Access to school is essential to the developmental, social, mental, and educational needs of school-age children. Schools should make reasonable efforts to follow school guidelines and -2-


best practices recommended by the CDC and the Montana Office of Public Instruction. LOCAL GOVERNMENT Local governments may modify the hours that their offices are open for the transaction of business. Strict compliance with MCA §§ 7-4-2211, 3-6-106, 7-4-102, and other related statutes governing the business hours of local governments in Montana are suspended during the emergency, but only to the extent necessary to respond to the emergency and to protect public health and safety. Local governments modifying office hours under this Directive must first obtain approval from their political subdivision or its delegates, and should endeavor to maintain compliance with state laws for office hours wherever it can be accomplished safely. Local governments are not relieved of state law requirements to maintain office hours for those offices and functions that are necessary for the maintenance of public health and human safety. Local governments must, whenever practicable, continue providing services via phone or other electronic means to limit the disruption in outward facing government services as much as possible and practicable. Local governments may modify their vacation and sick leave policies in response to the emergency to minimize the economic impact on their employees. Such policies may include permitting impacted employees who have exhausted their leave to accrue negative balances of sick or vacation time for the duration of the emergency. Local governments will bear all legal and financial responsibility related to any such policy modifications. Strict compliance with the local government portions of MCA § 2-18-601 et seq. and related statutes is suspended for this limited purpose only, and only to the extent necessary for responding to the emergency. Local governments may modify their employment policies, including modifications to the minimum work-week hours requirements. Strict compliance with MCA § 7-5-4111 and related statutes is suspended but only to the extent necessary for responding to the emergency. Local governments may toll and hold in abeyance certain deadlines provided in state law and regulation including the deadlines provided at: MCA Title 7 – Local Government Chapter 2, Part 43-48; Chapter 5, Parts 1 and 42; Chapter 15, Parts 42-43; Chapter 21, Part 10; and § 7-5-2123(2) MCA Title 76 – Land Resources and Use Chapters 1-8 Local Government actions relating to ARM 17.36 Subdivision/On-Site Wastewater Treatment (Subchapters 1,3,6,8,9) Strict compliance by local governments with deadlines provided in the above rules and statutes is suspended only to the extent necessary to respond to the emergency, with deadlines tolled on the date they began. A local government may not toll a statutory deadline with an effect on public safety or human health. -3-


All other portions of the above rules and statutes remain in effect, including all other procedural requirements. Local governments are encouraged to find ways to provide for the right of public participation consistent with social distancing practices, including virtual participation where legal and practicable. ECONOMIC DEVELOPMENT FUNDING Strict compliance with the Big Sky Economic Development Program in MCA Title 90, Chapter 1, part 2, and ARM 8.99.917 and 8.99.918, continues to be suspended to allow the Montana Department of Commerce to establish a new application and guidelines to administer the Big Sky Economic Development COVID-19 Impact Program, funded by up to $3 million of Big Sky Economic Development Program funds. EVICTION AND FORECLOSURE LIMITATIONS Evictions and foreclosure actions against Montana renters and homeowners for failure to pay are prohibited in the same manner as established by CDC and the U.S. Department of Health and Human Services (HHS) temporary orders in federal law. MOTOR CARRIER RELIEF Strict compliance with the “hours of service” and associated Electronic Logging Device (ELD) regulations, as provided in ARM 18.8.1502 (incorporating by reference 49 CFR. part 395), are suspended to the extent those regulations apply to drivers of commercial motor vehicles while transporting farm inputs, food, livestock, feed/hay, and medical supplies. But if a driver informs a carrier that the driver needs immediate rest, the “hours of service” requirements, enacted in MCA § 61-10-154 and implementing regulations, ARM 18.8.1502, must be followed. Commercial motor vehicle carriers, while under this Directive, shall not require or allow fatigued drivers to operate a motor vehicle. The weight limits for commercial vehicles provided for in Title 61, Chapter 1, Part 1, MCA, and ARM 18.8.431 are temporarily suspended under MCA §§ 61-10-111 and 10-3-104, to the extent that the maximum permissible weight is increased by 10 percent for commercial vehicles providing supplies to help support response to the emergency. This Directive serves as the special permit needed for the increase in weight. The weight increase does not apply to noninterstate load posted bridges and roads. Nor does this Directive waive or suspend any other state or federal regulation pertaining to commercial motor carriers and commercial driver license requirements or relieve carriers and commercial drivers from operating their commercial motor vehicles in a safe and prudent manner. The Montana Department of Transportation is directed to continue and support the Federal Motor Carrier Safety Administration “hour of service waiver,” waive temporary registration and temporary fuel permits for vehicle providing supplies to help support response to the emergency, honor other jurisdictions’ requests to suspend enforcement of the licensing and -4-


registration requirements for the International Fuel Tax Agreement (IFTA) and the International Registration Plan (IRP) for vehicle providing supplies to help support response to the emergency, and request other jurisdictions temporarily suspend enforcement on Montana based carriers licensing and registration requirements for the International Fuel Tax Agreement (IFTA) and the International Registration Plan (IRP) for vehicles providing supplies to help support the emergency. HEALTH CARE REGULATORY RELIEF The term “health care professional” means a person engaged in an occupation or profession that requires licensure through the Board of Medical Examiners, Board of Pharmacy, Board of Nursing, Board of Nursing Home Administrators, Board of Radiologic Technologists, Board of Respiratory Care Practitioners, Board of Clinical Laboratory Specialists, Board of Behavioral Health, Board of Physical Therapy Examiners, Board of Occupational Therapy Practice, Board of Sanitarians, or Board of Psychologists. Licensing: Strict compliance with ARM 24.101.417 is waived for the purposes of licensing health care professionals for the duration of the emergency so that health care facilities may bring in additional paid staff to Montana as soon as needed and possible. MCA § 37-1-141(8) and any other applicable statutes and rules are suspended to allow inactive, retired, or other health care professionals who have left the practice of their profession in the last five years and who have a clean disciplinary record to reactivate their license without meeting current licensure requirements. MCA § 37-1-305(2) and any other applicable statute or administrative rule is suspended to allow DPHHS to issue a temporary practice permit, without charging a fee, to any health care professional whose Montana license has been inactive or terminated for non-disciplinary reasons for a period of five years or less. Temporary permits issued under this Directive are valid until rescission of this Directive or Executive Order 2-2021. The following administrative rules are suspended to the extent they require continuing education, certification, evaluation, or other demonstration of competency after a period of inactivity or non-disciplinary termination of license: Pharmacy Behavioral Health Clinical Laboratory Science Physician, PA, ECP Nursing Home Admin. Occupational Therapy Respiratory Care Practice

ARM 24.174.504 ARM 24.219.509, 24.219.609, 24.219.709, 24.219.921, 24.219.5012, and MAR 24-219-35 ARM 24.129.611(1)(b) ARM 24.156.603(3), 24.156.615(3)(a), 24.156.618, 24.156.1618(2), 24.156.2719 ARM 24.162.515(6) ARM 24.165.604(3) ARM 24.213.402(7), 24.213.415(2) and (3) -5-


Speech Language Pathology Sanitarians

ARM 24.222.513(4) ARM 24.216.2104

Certain late fees associated with licensure renewals administered by DPHHS are waived for the duration of the emergency. MCA § 50-57-205 is waived as it relates to requiring a wholesale food establishment to remit late fees to DPHHS for failure to timely renew a license, but only to the extent it conflicts with this Directive. MCA § 50-50-205 is waived as it relates to requiring a retail food establishment to remit late fees to DPHHS for failure to timely renew a license. MCA § 50-51-204 is waived as it relates to requiring a hotel, motel, or rooming house to remit late fees to DPHHS for failure to timely renew a license. MCA § 50-52-202 is waived as it relates to requiring a tourist campground or trailer court to remit late fees to DPHHS for failure to timely renew a license. MCA § 50-53-203 is waived as it relates to requiring a public swimming pool to remit late fees to DPHHS for failure to timely renew a license. MCA § 50-48-202 is waived as it relates to requiring a tattooing or body piercing establishment to remit late fees to DPHHS for failure to timely renew a license. To the extent that any other state statute or administrative rule would frustrate this Directive, strict adherence is hereby suspended during the emergency. DPHHS shall continue to refund any late fees already collected pursuant to the above referenced statutes since the beginning of calendar year 2020. Congregate Care: Name-based background checks must be completed for all applicants to work at congregate care facilities and must be supplemented with fingerprint-based checks as soon as these services can be safely offered in all locations. To the extent there is a temporary shortage in physical fingerprinting services due to the emergency, and to accommodate staffing needs in congregate care facilities, DPHHS may temporarily waive licensing or certification requirements for congregate care facilities that require fingerprint background checks, provided that a name based background check is conducted and that a fingerprint check is done as soon as services become available. Accordingly, strict compliance with the following provisions is suspended for the duration of the emergency, but only to the limited extent they conflict with DPHHS’s implementation of guidance, waivers, or rules by the Centers for Medicare and Medicaid Services (CMS), and the Administration for Children and Families pertaining to background checks of providers, employees, or applicants, and only to the extent necessary to respond to the emergency: MCA § 41-3-304, related to emergency foster placements; MCA § 52-2-622(4), and ARM 37.51.207 and 37.51.310, related to youth foster home license applications, but only to the extent there is a specific conflict with the purposes of this Directive. ARM 37.40.1018(7), related to self-directed community first choice services providers, but only to the extent there is a specific conflict with this Directive. -6-


ARM 37.97.132 and 37.97.140, related to the licensure of youth care facilities, but only to the extent there is a specific conflict with this Directive. ARM 37.100.138(1)-(2) and 37.100.165(5), related to community residences, but only to the extent there is a specific conflict with this Directive. Any other statute or administrative rule that would require fingerprint-based checks for the above-described congregate care providers, employees, or license applicants, but only to the extent there is a specific conflict with this Directive. In order to reduce in-person interactions, DPHHS may waive training, and other training-related annual recertification requirements in congregate care facilities when these requirements cannot be met during the emergency. In-person training should be supplemented when it can be safely completed, and all care providers remain subject to competency requirements. Accordingly, strict compliance with the following provisions is suspended for the duration of the emergency to the limited extent they conflict with DPHHS’s implementation of guidance, waivers, or rules by CMS pertaining to the response to the COVID-19 pandemic, but only to the extent necessary to respond to the emergency: MCA § 50-5-238, related to the licensure of intermediate care facilities for developmentally disabled persons, but only to the extent there is a specific conflict with the purposes of this Directive. Provisions of ARM Title 37, Chapter 34, related to services of the developmental disabilities program and the home and community-based services program, but only to the extent there is a specific conflict with the purposes of this Directive. Provisions of ARM Title 37, Chapter 40, related to home and community-based services for elderly and physically disabled persons, but only to the extent there is a specific conflict with the purposes of this Directive. Provisions of ARM Title 37, Chapter 97, related to the licensure of youth care facilities, but only to the extent there is a specific conflict with the purposes of this Directive. Provisions of ARM Title 37, Chapter 100, related to community residences, but only to the extent there is a specific conflict with the purposes of this Directive. Provisions of ARM Title 37, Chapter 106, related to the licensure of health care facilities, but only to the extent there is a specific conflict with the purposes of this Directive. When illness or COVID-19 response makes compliance impossible, but care quality can be maintained, DPHHS may waive staffing-related licensing and certification requirements in congregate care facilities. Accordingly, strict compliance with the following provisions is suspended for the duration of the emergency to the limited extent they conflict with DPHHS’s implementation of guidance, waivers, or rules by the Centers for Medicare and Medicaid Services pertaining to the response to the COVID-19 pandemic, but only to the extent necessary to respond to the emergency: MCA § 50-5-238 related to the licensure of intermediate care facilities for developmentally disabled persons, but only to the extent there is a specific conflict with this Directive. Provisions of ARM Title 37, Chapter 40, related to home and community-based services -7-


for elderly and physically disabled persons, but only to the extent there is a specific conflict with this Directive. Provisions of Title 37, Chapter 90, ARM, related to the Home and Community-based Services Waiver for Adults with Severe Disabling Mental Illness, but only to the extent there is a specific conflict with this Directive. Provisions of Title 37, Chapter 97, ARM, related to the licensure of youth care facilities, but only to the extent there is a specific conflict with this Directive. Provisions of Title 37, Chapter 100, ARM, related to community residences, but only to the extent there is a specific conflict with this Directive. Provisions of Title 37, Chapter 106, ARM, related to the licensure of health care facilities, but only to the extent there is a specific conflict with this Directive. Where quarantine or isolation considerations necessitate alternative settings and resident health, safety, and comfort will not be jeopardized, the Department may waive licensing and certification requirements related to permissible premises, settings, or construction standards in situations. Accordingly, strict compliance with the following provisions is suspended for the duration of the emergency to the limited extent they conflict with the Department’s implementation of guidance, waivers, or rules by CMS pertaining to permissible premises, settings, or construction standards necessary to accommodate quarantine or isolation measures, and only to the extent necessary to respond to the emergency: MCA § 52-4-204 related to licensing of community homes for the physically disabled, and MCA § 50-5-238 related to the licensure of intermediate care facilities for developmentally disabled, but only to the extent there is a specific conflict with this Directive. Provisions of ARM Title 37, Chapter 97, related to the licensure of youth care facilities, but only to the extent there is a specific conflict with this Directive. Provisions of ARM Title 37, Chapter 100, related to community residences, but only to the extent there is a specific conflict with this Directive. Provisions of ARM Title 37, Chapter 106, related to the licensure of health care facilities, but only to the extent there is a specific conflict with this Directive. Telehealth: Pursuant to MCA § 33-22-138(6)(b), many types of licensed health care providers are eligible to deliver telemedicine services when clinically appropriate and medically necessary, including physicians, dentists, physical therapists, most types of licensed mental health professionals, pharmacists, advanced practice nurses, plus numerous others as listed in statute. Any of the professionals listed in statute may deliver telemedicine, if they are licensed to practice medicine in this state. Health care professionals shall be allowed to perform health care services using all modes of telehealth, including video and audio, audio-only, or other electronic media, to treat the residents of the State of Montana for all medically necessary and appropriate services. Strict compliance with MCA §§ 33-22-138(6)(d), 37-3-102(14), 37-11-101(11), 37- 15-102(11), and 37-8-


15-201(1)(d), and ARM 24.156.802(4), 24.156.813, 24.189.301(16), 24.189.415, 24.222.907, 24.222.910, 24.222.913, and 24.222.920 is suspended to the limited extent that providers are not limited for the duration of the emergency to the use of any specific technologies to deliver telemedicine, telehealth, or telepractice services, and may provide such services using secure portal messaging, secure instant messaging, telephone conversations, or audio-visual conversations. However, providers must ensure that patients have the same rights to confidentiality and security as provided during traditional office visits. And providers must follow consent and patient protocol consistent with those followed during in-person visits Strict adherence to the following requirements of board specific telehealth/telepractice/ telemedicine requirements for these practitioners is suspended to the extent that doing so is necessary in responding to the emergency: MCA § 37-3-102(14)(b), and ARM 24.156.813 (physicians); ARM 24.189.301(16) (psychologists); MCA §§ 37-15-102(11), 37-15-202(1)(d), and ARM 24.222.907; -.910; -.913; -.916; .920 (speech language pathologists and audiologists). To the extent that strict adherence to MCA § 33-22-138(6)(d)(ii)-(iii) conflicts with the purpose of services provided via telehealth during the emergency, it is suspended. Pursuant to MCA § 33-22-138, a pre-existing provider/patient relationship is not required to provide telemedicine, telehealth, or telepractice services. To the extent that ARM 24.101.417(2) would provide that volunteer health care professionals may not accept remuneration for services provided in responding to the emergency, it is suspended. Insofar as the strict compliance with the following provisions require face-to-face interactions for medical services, they are suspended: ARM 37.27.102(9) ARM 37.27.902(2) and (3), to the extent that provider manuals require face-to-face interactions ARM 37.27.517(1)(b) ARM 37.34.3005(2), the extent the rates manual requires face-to-face interaction ARM 37.40.702(8) and (9) ARM 37.40.805(1) through (3), to the extent Medicare requires face-to-face encounters ARM 37.40.1005(4), to the extent this requires in-person meetings ARM 37.40.1114(4), to the extent this requires in-person meetings ARM 37.86.901(2) ARM 37.86.902(2)(b) ARM 37.86.3405(2) ARM 37.86.4402(1) ARM 37.87.703(1)(h), to the extent that home support services require face-to-face -9-


interactions ARM 37.87.903(7), to the extent the provider manual requires face-to-face interaction ARM 37.87.1401(3)(a), to the extent this limits reimbursement for telephone contacts that exceed the number of reimbursed face-to-face contacts in a four-week period ARM 37.87.1402(5) ARM 37.87.1410(6)(b) ARM 37.88.101(2), to the extent the provider manual requires face-to-face interaction ARM 37.89.501(2) ARM 37.106.1916(5) ARM 37.106.1935(4) ARM 37.106.2011(3), to the extent this requires in-person, in-home meetings The coverage for health care services delivered by telemedicine “must be equivalent to the coverage for services that are provided in person […].” MCA § 33-22-138. Telemedicine services, when medically and clinically appropriate, must be covered to the same extent and as if the health care provider and patient were physically present in the same room. Further: Reimbursement to the provider for those services should also be equivalent, as if the services were provided “in person.” Health insurers must educate health care providers as soon as possible on appropriate Current Procedural Terminology (CPT) codes to be used to secure prompt, equivalent payment for telemedicine services. Health insurers should continue to take steps to ensure their network is sufficient, as required by MCA § 33-22-1706 and ARM 6.6.5901–5908, to handle an increased demand for telemedicine and telehealth services, including making out-of-state in-network providers available to their insureds for telemedicine and telehealth services, if their in-state network cannot meet the demand. This may be particularly true for providing adequate access to behavioral health providers. Health insurers and health care providers are likewise encouraged to take all necessary steps to avoid out- of-network and “surprise” bills for telemedicine and telehealth visits. “Out-ofnetwork” health care providers who receive funding under the CARES Act Provider Relief Fund may not “balance bill” insured patients for services related to COVID-19 treatment. https://www.hhs.gov/provider-relief/index.html https://www.hhs.gov/sites/default/files/relief-fund-payment-terms-and conditions04132020.pdf Cost-sharing to the insured may be applied according to the terms of the contract. However, telemedicine and telehealth consultations relating to the testing for and diagnosis of COVID-19 virus must be covered without cost-sharing to the insured by providers of group health insurance and individual health insurance coverage (health insurers), as defined under MCA §§ 33-22-140(10), (11), and (14), section 2791 of the Public Health Service Act (42 U.S.C. § 300gg– 91),2 and the Families First Coronavirus Response Act, H.R. 6201, Pub. L. 116-27. -10-


https://www.congress.gov/bill/116th- congress/house-bill/6201 Disclosures: Emergency services providers are to be notified of contact with COVID-19 positive individuals. Strict compliance with the Montana Government Health Care Information Act (GHCI), MCA §§ 50-16-601–611, is suspended to the limited extent that health care information in the possession of the department, a local board, a local health officer, or the entity’s authorized representatives may be disclosed to an emergency services provider who may be at risk of coming into contact with a person who tested positive for COVID-19. The GHCI allows for the release of healthcare information “to medical personnel, the department, a local health officer or board, or a district court when necessary to implement or enforce state statutes or state or local health rules concerning the prevention or control of diseases . . . ” MCA § 50-16-603. Because this provision does not account for all varieties of professionals who might come into contact with individuals suffering from COVID-19 in an emergency services provider capacity, such notice is permissible when provided consistent with other laws. Entities subject to the GHCI must remain aware that disclosures made pursuant to this Directive remain subject to the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Privacy Rule (located at 45 CFR Part 160 and Subparts A and E of Part 164). Thus, HIPAA permits, for example, a covered county health department to disclose protected health information to a police officer or other person who may come into contact with a person who tested positive for COVID-19, for purposes of preventing or controlling the spread of the disease. See 45 CFR § 164.512(b)(1)(iv). However, that disclosure would still be subject the minimum necessary provisions of 45 CFR § 164.514 and other applicable requirements. For more information, please see: https://www.hhs.gov/sites/default/files/covid-19-hipaa-and-firstresponders-508.pdf. While conducting communicable disease investigations and notifying contacts, state and local public health officials will give priority to notifying emergency services providers of their potential exposure. For the purposes of the federal Ryan White Act, SARS-CoV-2 (the virus causing COVID-19) has been added to the list of “Potentially Life-Threatening Infectious Diseases: Routinely Transmitted Through Aerosolized Droplet” by the Centers for Disease Control and Prevention. Section 2695 of the federal Ryan White Act (42 U.S.C. § 300ff-131) seeks: (1) to identify those potentially life-threatening infectious diseases to which emergency response employees may be exposed in responding to emergencies; and (2) describe the steps that medical facilities should follow to notify emergency services provider to allow for the timely diagnosis and postexposure medical treatment of those exposures. For more information, please see: https://www.cdc.gov/niosh/docs/2020-119/pdfs/2020119.pdf?id=10.26616/NIOSHPUB2020119. Emergency services providers and healthcare facilities are encouraged to review the provisions -11-


of MCA §§ 50-16-701–712, related to when an emergency services provider may request notification of exposure to an infectious disease, including an airborne infectious disease, following an exposure while attending to a patient prior or during transport or assisting in transporting a patient to a healthcare facility. Strict compliance with provisions of Montana law related to Health Care Information Privacy Requirements for Providers Subject to HIPAA, including MCA §§ 50-16-805 and 50-16-811 is suspended to the limited extent that these provisions would conflict with or preclude disclosures allowed by the federal waiver of HIPAA authorities intended to provide flexibility during this emergency. To the extent that any other statute or administrative rule would preclude disclosures consistent with this Directive and allowed by federal law, including the recent federal waivers of the HIPAA Privacy Rule, strict compliance is hereby suspended. Procurement Flexibility: To the extent necessary to respond to the emergency, such as the procurement of additional patient space or necessary medical supplies, compliance with the following procurement authorities are temporarily waived: The Montana Procurement Act, Title 18, Chapter 4 of the Montana Code Annotated. MCA § 18-6-101, related to agency power to sell or dispose of state property. MCA § 2-17-101, related to agency leasing of property. Any provision of Title 2, Chapter 5 of the Administrative Rules of Montana related to state agency procurement. Any other statute or administrative rule to the extent that it would frustrate this directive. The above waivers do not apply to routine operations of state government, and any agency that proposes to engage in necessary, emergency-related procurement under this Directive must receive express approval from the Governor’s Office or its agents. As it pertains to patients suspected or confirmed to have been infected with COVID-19, strict compliance with the reporting requirements of ARM § 37.114.306 related to the transportation of communicable disease cases is waived. Transfer of a communicable disease case from one health care facility to another to meet that patient’s care needs will require no notice or permission from a receiving county’s local health officer. When a patient is discharged from a health care facility back into their home community, the sending jurisdiction should notify the receiving county’s lead local health officer as soon as reasonably practicable. Vaccine Administration: As detailed in the HHS amendment and consistent with the requirements set forth therein, state licensed pharmacists may order and administer vaccines to children ages 3 through 18 years. Strict compliance with MCA § 37-7-105 is suspended to the extent that it conflicts with, or is preempted by, the federal HHS amendment to its Declaration under the Public Readiness and Emergency Preparedness Act. -12-


EMPLOYMENT RELIEF Unemployment Benefits: To further the ability of Montanans to receive unemployment insurance benefits, ARM 24.11.478 shall remain in effect under Executive Order 2-2021. Weekly Pay Requirements: MCA § 18-2-423 is waived as it relates to payment of employees on a weekly basis by emergency medical transport contractors for the State Emergency Coordination Center. INCARCERATION PROTOCOLS The Montana Department of Corrections (DOC) shall continue to implement risk reduction protocols to address COVID-19 at its state-operated or state-contracted facilities, including the following: Screening all persons arriving at a facility in a manner consistent with CDC guidelines. Restricting all in-person visitations and continuing to provide, to the greatest extent possible, access to non-contact visitation methods. DOC shall continue offering one free video visit and one free phone call for each inmate per week for the duration of inperson visitation restrictions. DOC shall continue providing unmonitored call lines for legal communications and encouraging attorneys to limit in-person visits to essential visits only. Restricting off-site appointments for incarcerated individuals to those necessary to address an inmate’s urgent or serious medical needs. Providing support to the Board of Pardons and Parole to consider early release for all of the following, but only so long as they do not pose a public safety risk and can have their medical and supervision needs adequately met in the community: Inmates aged 65 or older; Inmates with medical conditions that place them at high risk during this pandemic or who are otherwise medically frail; Pregnant inmates; or Inmates nearing their release date. Temporarily suspending all transfers into the DOC’s custody except as authorized herein. All transfers into the DOC’s custody under this Directive shall be quarantined for a period of 14 days on arrival into DOC custody. Before an in-state transfer, a county jail or other originating facility may request that the Director of the DOC determine that the jail or originating facility has satisfactorily implemented risk reduction protocols as outlined above. If the Director determines that risk reduction protocols were satisfactorily implemented, transfers will resume in accordance with this Directive but are still subject to the 14-day quarantine requirement. Counties will continue to be reimbursed under existing reimbursement rates and protocols for these inmates. The statutory requirement to maintain county jail holds at a monthly average of 250 or less is suspended for this purpose only. -13-


Out-of-state transfers are only permitted on the express approval of the Director, are to be limited to the most pressing or severe cases, and must follow the 14- day quarantine requirement. The Director may suspend all transfers into DOC custody if capacity limitations prevent the ability to quarantine transfers. Urging local detention facilities to adopt appropriate screening and operational protocol as contained herein to prevent the introduction or spread of COVID-19 within their facilities and throughout the system. Implementing protocols for incarcerated persons who display symptoms of COVID-19, including appropriate testing and isolation protocols. DOC shall continue to work closely with DPHHS on these protocols. Providing, to the extent possible, appropriate personal protective equipment to staff as recommended by the CDC. Conducting necessary cleaning and disinfecting of facility surface areas. Ensuring access to personal hygiene products for incarcerated persons and correctional staff, including soap and water sufficient for regular handwashing. DOC will continue to educate staff and inmates on social distancing, handwashing, and personal hygiene. Offering educational and other programming to the greatest extent possible, while practicing social distancing protocol. Minimizing crowding, which may include scheduling additional mealtimes and recreational times, as staffing allows, to provide for increased social distancing. Nothing in this Directive shall abridge the rights of victims of crime to be notified of or participate in release decisions. DOC shall implement risk reduction protocols to address COVID-19 risks to offenders on community supervision and the probation and parole officers who supervise them. Conditions of supervision remain in full effect and offenders are required to comply with those conditions. To the greatest extent possible, DOC shall reduce in-person contact to only those instances where public safety requires it and conduct other routine contacts via telephone or other means. Pre-Sentence Investigation interviews and risk and needs assessments shall be conducted telephonically. Statutory restrictions on the use of supervision fees to facilitate the purchase of the necessary equipment to further enable remote supervision are suspended. Where public safety requires physical contact with an individual on community supervision, DOC staff shall practice social distancing and hygiene, and use adequate PPE to the extent possible. It is imperative for public safety that those re-entering communities from facilities obtain appropriate, adequate housing during this time where supportive social services are limited. Therefore, any statutory restrictions, as promulgated in ARM 20.13.108, on rental voucher funds are hereby suspended so as to allow additional discretion for these funds to be utilized for any housing-related expense, to ensure adequate re-entry housing. Applicability: In the interest of uniformity of laws and to prevent the spread of disease, all -14-


inconsistent local government health ordinances or orders are preempted by this Directive, but only to the extent they are less restrictive. Authorities: Sections 10-3-104, -103, -302, and -305, MCA; §§ 50-1-202, -101, -203, and -204, MCA; Executive Order 2-2021; Montana Constitution, Art. VI, Sections 4 and 13; and all other applicable provisions of state and federal law. Limitations: This Directive becomes effective February 12, 2021, and expires at the end of the declared state of emergency in Executive Order 2-2021. This Directive shall be implemented consistent with applicable law and subject to the availability of appropriations. If any provision of this Directive or its application to any person or circumstance is held invalid by any court of competent jurisdiction, this invalidity does not affect any other provision or application of this Directive, which can be given effect without the invalid provision or application. To achieve this purpose, the provisions of this Directive are declared to be severable. Nothing in this Directive shall be construed to limit, modify, or otherwise affect the authority granted by law to the Governor or any department, agency, political subdivision, officer, agent, or employee of the State of Montana, except as provided in this Directive or other Directives now in effect implementing Executive Order 2-2021. This Directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the State of Montana, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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