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Education Department Releases Legal Guidance for Districts on H1N1 Flu

As school districts prepare for the onset of the H1N1 flu this fall, the federal Department of Education has released legal guidance in case a flu outbreak causes school and school district closures. The guidance also tells schools what liability they might have in giving out vaccines.

A number of districts closed their doors when the H1N1 flu, also known as swine flu, first surfaced in late spring, but federal officials are now advising against closing schools unless deemed absolutely necessary.

The guidance says the federal department will give state education agencies, school districts, and schools "as much flexibility as necessary to appropriately address the impact an H1N1 outbreak may have upon the normal functioning or delivery of educational service."
That includes, if deemed appropriate, waiving regulations regarding testing, accountability, and reporting requirements. States are to apply for these waivers on behalf of school districts.

Here's one interesting tidbit for schools working on making the grade under the No Child Left Behind Act:

"For example, if a school fails to make AYP during the school year due to administrative challenges caused by an H1N1 outbreak, the school may “delay” meeting school improvement requirements for a period not to exceed one year."

Schools don't need prior federal approval to do this, so it will be interesting to see how states deal with any district claiming such "administrative challenges."

When educating students with disabilities, the department recommends making use of technology to keep learning going for students who may be out of school because of an outbreak or because they are at especially high risk of contracting the virus. More guidance on keeping learning going while dealing with school closures can be found here.

The guidance also provides important information on administering the flu vaccination when it becomes available in October. School districts are generally exempt from being held liable from any injuries that result from giving H1N1 vaccines because HHS Secretary Kathleen Sebelius declared that the flu constituted a public health emergency under federal law.

School districts, however, can be liable for death or serious injury caused by "willful misconduct" of school employees. But the federal law sets a high bar for "willful misconduct," making it unlikely most school district will have to worry about lawsuits from vaccinating kids.

U.S. Secretary of Education Arne Duncan appeared on ABC's Good Morning America this morning to talk about precautions against the flu and advised parents to keep sick children home to prevent spreading the flu further.

Duncan told anchor Diane Sawyer he's encouraged by the cooperation he has seen among state and local entities. Even businesses are joining in, offering their buildings as vaccination locations.

"What you are seeing across the country is an outbreak of common sense," Duncan said. "People are working hard together. We don’t want to create alarm at all, what we want to do is get out great information. The more we are all talking and sharing information, the better we can handle this as we go into the school year.”

And in case you are wondering, Duncan told EdWeek's Michele McNeil that he and his children will get the H1N1 vaccination.

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