TALLAHASSEE — Six school districts have challenged a revised Florida Department of Health rule that seeks to block mask requirements for students and allow parents to decide whether children go to school after they been exposed to people with COVID-19.

Lawyers for school boards in Miami-Dade, Broward, Orange, Duval, Alachua and Leon counties filed the challenge Wednesday afternoon with the state’s Administrative Hearings Division. Districts have forced students to wear masks to try to prevent the spread of COVID-19, thwarting Gov. Ron DeSantis’ administration on the issue.

The challenge argues, in part, that the health ministry has overstepped its authority with the rule, which allows parents to “opt out” of student mask requirements. School boards also allege that the rule is “arbitrary and capricious” and that the ministry improperly issued the rule as an emergency measure.

“Although it is titled ‘School-Based COVID-19 Control Protocols’ and promulgated only under the limited regulatory authority of the DOH (the department) to control communicable diseases, the DOH rule challenged in this petition is not actually focused on controlling COVID-19 but rather on protecting parental rights, ”the challenge said.“ The DOH has no regulatory power in this area and has therefore overstepped its regulatory power. “

The petition is the latest in a series of legal cases rooted in a July 30 executive order issued by DeSantis to try to prevent school mask requirements. DeSantis argues that parents should be able to decide whether children wear masks.

The Department of Health issued a rule on August 6 to implement DeSantis’ executive order and issued challenges to school boards in Miami-Dade, Broward, Orange, Alachua and Leon counties. As a hearing before an administrative law judge neared, the department released a revised rule on September 22 that went beyond the original version.

The revised rule included a change that targeted school districts — including the six in the new challenge — that allowed mask removals only for documented medical reasons. The revised rule said that the removal of mask requirements is “at the sole discretion of the parent or legal guardian.”

In addition, the new measure restricted the ability of districts to require the quarantine of students who have been exposed to COVID-19. It gives parents the option of allowing “the student to attend school, participate in school sponsored activities or be on school property, without restrictions or disparate treatment, as long as the ‘pupil remains asymptomatic’. The option does not apply to children who show symptoms of COVID-19.

DeSantis ‘rule and decree are based, at least in part, on a new state law known as the “Parents’ Bill of Rights,” which aims to guarantee the rights of parents to make decisions about matters. health and education for their children.

In the rule, the Department of Health cited its legal authority to “adopt rules governing the control of preventable communicable diseases” and said that “because students benefit from in-person learning, there is a need to immediately enact a rule regarding COVID-19 safety protocols that protect the rights of parents and maximize in-person education allowance for their children.

But the School Board Challenge argues that the ministry is “at most” capable of making rules on vaccinations and communicable disease control — but lacks the legal authority to enforce parental rights.

“The DOH has not identified any legislative authority to implement a rule to protect parental rights,” the petition says. “The DOH also failed to explain why parental rights protection was ‘necessary’ for it to discharge its limited regulatory authority under (a section of state law) to control communicable diseases. “

Jamie Cole, a Fort Lauderdale attorney for school districts, said Thursday the department improperly enacted the rule in an emergency, rather than going through a process that would include public notice and a hearing. Cole said he also filed a request for public data recording which the ministry said it used as the basis for the rule but did not receive the data.

“Why did they need to do it in a secretive and urgent way? Cole said.

The health ministry said in the rule that the measure was in line with DeSantis’ July 30 decree.

“In order for students to continue their learning in person, to minimize the harm to students and school staff from the added burden of recurring student withdrawal, and to benefit the overall well-being of students in Florida, it is necessary to provide updated emergency information. advice to school districts regarding the governance of COVID-19 protocols in schools, ”the rule says.

The challenge was filed as the State Board of Education prepared to meet Thursday afternoon to determine whether up to 11 school districts had broken the Department of Health rule. The Education Department has previously imposed sanctions on Alachua and Broward counties, withholding amounts equal to the salary amounts of school board members — although the federal government has stepped in to cover the lost money.

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