Thanks to the efforts of Emma Woodhouse and her fellow Mom advocates, this letter was drafted and submitted to JCAR today. We endorse this parent's letter and share the same concerns regarding the false IDPH assertions and the interim guidance updated July 7, 2022.
Our call to action for any parent, educator, or community member is to send the text and document below to JCAR (and your current/campaigning legislators). The goal is for the Illinois General Assembly to balance state agency power and ensure a return to normal for the 2022-2023 school year. The time is now.
A sample email and the JCAR letter is copied below. The letter is also available for download as a PDF.
COPY/PASTE the following to jcar@ilga.gov
Dear Members of the JCAR:
I am a concerned [INSERT PARENT/GUARDIAN/RESIDENT] of [INSERT CITY]. I support the claims and advisements in the attached letter submitted to JCAR on July 7, 2022. Please help ensure a return to normal school for all Illinois students. I look forward to hearing news of positive progress on this important issue.
Sincerely,
[INSERT NAME HERE]
LETTER TO JCAR
July 8, 2022
Dear Ms. Schultz & Members of the Joint Committee on Administrative Rules,
I’m writing to address the letter that Amaal Tokars, Acting Director of the Illinois Department of Public Health, sent to you on June 13, 2022, in reply to your May 19, 2022 letter. Thank you for reaching out to the Department with questions about its March 25, 2022 statements.
I have five points of contention with Dr. Tokars’ response.
1. Dr. Tokars made a false claim about school authority under the Illinois Communicable Disease code.
She wrote, “Prior to and throughout the COVID-19 pandemic, schools have had the authority to ensure the safety of schoolchildren with respect to communicable diseases.” She quotes Ill. Admin. Code 690.30(c) as saying “requires schools to refuse admittance to the school is a person is suspected of being infected with a reportable infectious disease for which isolation required.”
This is an incomplete reading of 690.30(c)(2), which says,
“Persons suspected of being infected with a reportable infectious disease for which isolation is required, or persons with diarrhea or vomiting believed to be infectious in nature, shall be refused admittance to the school or childcare facility while acute symptoms are present.”[1] [emphasis added]
This section of the code is referring to only people who have acute symptoms of a reportable infectious disease -- not to students without symptoms or to healthy students who were allegedly exposed to a sick person or asymptomatic person who “tested positive.”
2. Dr. Tokars made a false claim about school authority under 105 ILCS 5/10-21.11.
This statute says: (105 ILCS 5/10-21.11) (from Ch. 122, par. 10-21.11) (emphasis added) Sec. 10-21.11. Infectious disease policies and rules. To develop policies and adopt rules relating to the appropriate manner of managing children with chronic infectious diseases, not inconsistent with guidelines published by the State Board of Education and the Illinois Department of Public Health. Such policies and rules must include evaluation of students with a chronic infectious disease on an individual case-by-case basis, and may include different provisions for different age groups, classes of instruction, types of educational institution, and other reasonable classifications, as the school board may find appropriate. This requirement applies to all school districts and public schools of this State, including special charter districts, Department of Corrections school districts, laboratory schools operated by the governing board of a public university, and alternative schools operated by a regional superintendent of schools. (Source: P.A. 86-890; 86-1028.)
Dr. Tokars asserts this statute relates to communicable infectious diseases (e.g., influenza, RSV, strep A, Covid-19), when the statute is referring to children with chronic infectious diseases. In 2003, ISBE and IDPH published a document that details the kinds of diseases this statute is intended to address (e.g., HIV, Hep A): (Oddly, this document was removed from ISBE’s site within the past six months, per data in Internet Archive. Perhaps JCAR can ask ISBE and IDPH why it’s been removed.)
3. Dr. Tokars fails to acknowledge the conflict between IDPH’s “guidance” for covid-19 and its “guidance” for diseases comparable to covid-19.
Dr. Tokars cites the Department’s most recent guide for communicable diseases.
Please note
Exclusion of actually-sick children is symptom-driven,
Exclusion for symptoms does not include excluding children for having symptoms such as a stuffy nose, mild headache, or minor cough in the absence of a fever,
Of the diseases comparable to covid-19 for children, none carry a requirement to be tested (or clinically-diagnosed) or dictate a certain number of days out of school,
Of the disease comparable to covid-19 for children, none direct “close contacts” to stay home or be tested.
In truth, IDPH has been directing schools to address covid-19 in ways that conflict with the communicable disease code, DPH Act, and Illinois School Code.
4. Dr. Tokars ignores the illegality of IDPH’s Emergency Rulemaking which amended the Control of Communicable Diseases Code.
Dr. Tokars says the rules constituted “a clear directive and guidance to schools about the necessity of excluding from school individuals who were sick from or exposed to COVID-19.”
The “directive” was clear, indeed, but it contradicted the law, which does not give schools independent authority to keep children out of school due to illness or exposure thereto.
Emails obtained via FOIA show correspondence to, from, and/or between staff at IDPH, ISBE, the Governor’s Office in September 2021. (See Appendix A.) Suffice to say, there was much “behind-the-scenes” scrambling and ethically-questionable decision-making.[2]
Staff at the agencies were clearly concerned about a series of late August/early September court decisions that upheld the law regarding quarantining and masking schoolchildren.
On September 7, 2021, in an apparent attempt to convince schools the law says something it does not, ISBE passed a resolution that said, 77 IL Admin Code 690.30 grants Illinois schools the authority to exclude Illinois students from school due to contacts related to communicable and infectious diseases, including COVID-19. During the meeting about this resolution, General Counsel Jeremy Duffy told the Board (and the Board agreed) that Section C of 77 IL Admin Code 690.30 “already allowed schools to exclude students, based on being asymptomatic or for other reasons such as close contacts.” (I explained earlier in my letter why this is false.)
The following day, Sangamon County State’s Attorney Daniel Wright issued a memo directly addressing the question, Does 77 Ill. Admin. Code 690.30 grant schools the unilateral authority, absent a public health order, to exclude children from school due to contacts related to communicable and infectious diseases, including COVID-19? (See Appendix B). His answer? No. The Control of Communicable Diseases Code, 77 Ill. Admin. Code 690, does not grant a school unilateral authority, absent a public health order, to exclude children from school due to contacts related to COVID-19. The analysis in Mr. Wright’s answer is accurate; I urge all JCAR members to read it.
This memo circulated widely, including to the Illinois Educators Association (IEA) leadership. The Illinois Principals Association September 10, 2021 newsletter even told its subscribers, in no uncertain terms, “Over the past two weeks, there have been several court cases relative to quarantining students and remote instruction. With respect to quarantining students, this is a decision that must be made by the local health department or Illinois Department of Public Health after consultation with school officials. A school district cannot unilaterally quarantine students.” (See Appendix C)
Yet IDPH, ISBE, and the Governor’s Office proceeded with workaround efforts that amounted to ad hoc lawmaking. Even with redactions, it’s clear from the emails attached that staff were trying to make legal that which was illegal.
On September 17, 2021, the Governor issued an Executive Order that effectively gave “cover” for emergency rules that contradicted the law, outside the emergency rulemaking process, without suspending any laws. In fact, the language of the EO is the language of the emergency rules. To my knowledge, emergency rules cannot be written and issued in an Executive Order[3].
Notably, despite receiving numerous emails from Illinois citizens urging JCAR to object to IPDH’s emergency rules (see Appendix D), not one committee member objected to the filing. I understand there were many “irons in the fire” in those weeks; still, thousands of healthy children were unlawfully kept out of school because those rules were permitted to stand. IDPH and ISBE continue to mislead school boards and parents through their “guidance” documents (i.e., https://dph.illinois.gov/covid19/community-guidance/school-guidance/rapid-point-care-testing-covid-19.html).
With IDPH continuing to provide “free” testing to schools via SHIELD Illinois, it appears that covid-19 protocols exist solely to create a perceived need for testing. I have enough faith in JCAR members to trust I don’t have to say much more about the driving incentives and relationships on that front.
5. The exclusion rule was not, as Dr. Tokars claims, “important to empower schools to keep children safe.”
While Dr. Tokars is speaking to what the Department “felt” at the time, feelings are not a basis or excuse for circumventing state law.
The law does not grant IDPH the authority to “empower” schools to take actions that conflict with the law, nor can IDPH share with schools the “supreme authority” the DPH Act grants to the agency and local health departments alone.
Moreover, why was it important for anyone to empower schools if existing law and code already afforded such power, as Dr. Tokars is alleging? In truth, no such power existed (and still does not).
Countless Illinois families, including mine, have been harmed by the Pritzker Administration’s repeated attempts to greatly exaggerate the danger covid-19 poses to children – and keep healthy, not-sick kids and teens out of in-person school.
Exposure quarantines not only resulted in tens of thousands (if not hundreds of thousands) of days out of school, but also did not prevent children from contracting SARS-CoV-2. I personally know 10 families whose children were forced to miss upwards of 40 days of in-person school, due to an alleged school “exposure” to covid-19. None of these children developed covid symptoms during their quarantine – and all contracted and recovered easily from the virus eventually, regardless of whether they were vaccinated.[4]
The damage to Illinois children’s mental health, social development, and academic progress is incalculable. It will not be remedied simply or quickly by various “programs” the Governor is throwing at the problems he created with his pandemic-response policies.
With this letter, I ask JCAR to
a) apprise Dr. Tokars and IDPH of what the communicable diseases code says and means, with respect to schools’ authority, b) publicly acknowledge that IDPH’s emergency rules filed on September 17, 2021 were not lawful, c) publicly acknowledge that covid-19 is not creating an emergency or “disaster area” for Illinois schools and schoolchildren, d) provide Illinois residents with explanation as to why your committee did not object to IDPH’s September 17, 2021 emergency rules, e) provide Illinois residents with your own answers to the questions you posed to Dr. Tokars (i.e., do you believe the Communicable Diseases code and Illinois law gives schools the authority she claims they have and have always had?), f) urge IDPH and ISBE to rescind all “guidance,” decision trees, etc. dedicated to covid-19, and g) advise IDPH to revise its communicable disease guide for schools to integrate covid-19 alongside other communicable diseases.
Parents should not have to file lawsuits to stop their children from being harmed by the executive branch. Please exercise your powers under the law to check agency power and help return the 2022-2023 school year to normal.
Real normal.