Flouting DC Covid Law, Endangering Students, Teachers, & Schools

[Ed. Note: The following blog post is by former DCPS teacher Kathleen Coughlin, whose tracking of covid reporting in DC’s publicly funded schools has revealed that various DC agencies have not been following DC law for covid-related data reporting and testing in our schools. Last year, Coughlin created a website with DC school covid data when it became apparent that no DC agency was doing so in a fulsome manner. Coughlin’s excellent website is here: https://dcpscoviddash.wixsite.com/website.]

By Kathleen Coughlin

DC Health, DCPS, and possibly many charter LEAs have spent the last eight months grossly out of compliance with the Protecting Our Children Emergency Amendment Act of 2021 and the Protecting Our Children Temporary Amendment Act of 2021, including

–Not testing appropriate percentages of students for covid;
–Not releasing charter LEA (local education agency) covid testing data when it was required;
–Not posting other required school covid testing, case, and quarantine data; and
–Posting data with errors or in conflict with other public sources.

Despite repeated calls from constituents, the DC council, the DC auditor, and the state board of education to become compliant, report required data, and correct errors and inconsistencies, these agencies have largely not done so. Moreover, in response to multiple Freedom of Information Act (FOIA) requests for this information, DC Health has provided contradictory and misleading responses. 

The public consequences are grave:

Lack of covid data required by law deprives students, teachers, and families of critical information to which they are entitled and that may provide personal protection in a pandemic.

And failing to meet testing requirements puts students, teachers, and their families in harm’s way by leaving cases undetected and causing additional spread. For instance, I calculated that this shortfall in DCPS alone resulted in at least 20,000 fewer students being tested, potentially accounting for twice as many cases—about 1000—than were actually detected.

On top of all that, failure to appropriately test students and report cases per the law undermines the authority of the DC government and limits its ability to make policies that are responsive to the ever-changing nature of the pandemic.

Sensible Laws; Senseless Responses

On October 5, 2021, the DC council unanimously passed B24-0403, Protecting Our Children Emergency Amendment Act of 2021. On October 26, the law was enacted without Mayor Bowser’s signature. As a result, several requirements went into effect, including the following:

“Sec.103 Asymptomatic testing for COVID-19.
(a)(1) Each school shall conduct weekly asymptomatic testing for the COVID-19 virus of:
(A) Before November 1, 2021, at least 10% of its students attending in-person learning;
(B) Beginning November 1, 2021, at least 15% of its students attending in-person learning; and
(C) From November 15, 2021, through January 15, 2022, at least 20% of its students attending in-person learning.

“Sec. 105. COVID-19 infection and mitigation reporting requirements.
(a)(1) On or before November 1, 2021, the Department of Health shall make available and update the following information on a weekly basis for the previous week on the District’s coronavirus website (coronavirus.dc.gov), broken out by week:
(A) The number of students who tested positive for COVID-19, broken out by LEA, school, and grade level;
(B) The number of school personnel who tested positive for COVID-19, broken out by LEA and school;
(C) The total number of students tested, broken out by LEA, school, and grade level; 
(D) The total number of school personnel tested, broken out by LEA and school;
(E) The number of students in quarantine, broken out by LEA, school, and grade level; and
(F) The number of school personnel in quarantine broken out by LEA and school.”

This law expired on January 24, 2022. Shortly thereafter, the council reinstated many of the requirements found in B24-0403 via a new law, B24-0413, the Protecting Our Children Temporary Amendment Act of 2021, which was enacted without the mayor’s signature on December 14, 2021, went into effect on February 18, 2022, and will expire on October 1, 2022.

Before the first law (B24-0403) went into effect, DCPS’s asymptomatic testing program called for weekly testing of 10% of students. After a long weekend, 20% of students were to be tested. Other LEAs had their own testing policies. Starting on November 1, per B24-0403, the testing requirement for all publicly funded schools (i.e., DCPS and DC public charter schools) went to 15% every week. Then, starting on November 15, the requirement went to up to 20%.

Below is a graph I created of the percent of DCPS’s audited enrollment that was tested from late September 2021 through May 2022. This graph shows that DCPS did not test 20% of its students even once during the weekly requirements imposed by B24-0403 from November 1, 2021 until its expiration on January 15, 2022. DCPS got close on December 12, when it was about 100 students short of the law’s goal. There were many weeks when schools were skipped altogether, and some went for weeks with no tests administered. For example, the school where I worked went for 16 days in January with no testing whatsoever. And even though I found that DCPS as a whole surpassed its own testing goal twice in October and was testing 20-21% of students for a few weeks in late January and early February, all of that was outside of the scope of the legislation and never involved all schools hitting the law’s benchmark at any moment.

Furthermore, while the testing requirement was in place, DC Health did not report anything regarding testing at DC charter LEAs, so it was unclear whether they were meeting this standard. In mid-February, DC Health added this webpage, which allows searches for individual schools and LEAs—but this was created after the law’s testing requirement expired. That made it impossible to track compliance of charter LEAs or attempt to intervene if the testing requirement was not being implemented correctly.

The screenshots below of that website, showing testing in two charter LEAs for the same 6-month period, indicate that some charter LEAs test regularly, while others do not (or simply don’t report it).

Promises, Promises

For the duration of the requirements of B24-0403, DC Health, OSSE (the office of the state superintendent of education), and DCPS were contacted many times about compliance with the law. DC Health also heard regularly from the DC council (through emails and weekly covid calls) about the expectation to comply with the law. Both DCPS and DC Health were aware of the requirement to test 20% of students each week because both agencies posted publicly about it on social media before the requirement expired as well as after. In addition, OSSE’s contract with Shield T3 (which conducts in-school testing) set the target at 20% of students each week.

Screenshot of a DC Health slide from the January 10 situational update shared on Twitter by Mayor Bowser here.
Screenshot of a graphic included in a DCPS email sent on January 13 viewable online here and on this Twitter post from January 26.
Screenshot of section B.4.2.1 of the contract between OSSE and Shield T3 for in-school testing.

The requirement for asymptomatic testing of 20% of students each week expired after January 15. (Even though that section is included in the bill’s next iteration (B24-0413), the language in the newer bill retains that January 15 end date.) Though the graphics above indicate a commitment to testing at least 20% of students for the remainder of this school year, I have observed that testing has lessened significantly since winter. For the past 2 months or so, for instance, weekly testing in DCPS has included only about 12% of students.

The insult here goes beyond not following the law:

Not only did DCPS never meet the 15% and 20% weekly testing standards of B24-0403, but I calculated that this shortfall in legally mandated testing resulted in at least 20,000 fewer DCPS students being tested than the law called for. If the required tests had been administered per the law, I determined (using the recorded positivity rate for that period) that about twice as many DCPS cases would potentially have been found than were actually detected. That works out to about 1,000 more cases, an astonishing number.

Data Problems

Even before the reporting requirements were in place, there were discrepancies between the data posted on the coronavirus.dc.gov website (run largely by DC Health and the mayor’s office) and the dcpsreopenstrong.com site (run by DCPS). DC Health regularly reported more cases in DCPS students and personnel than DCPS reported, and the gap between the total number of cases recorded by these agencies only widened over time. The graph below (responsive version available here) compares the total cases reported via individual case notification letters shared with schools and posted on their website by DCPS to the number of cases reported on this DC Health page (which was updated each weekday from the beginning of the year through February 28). Confusingly, there is yet another page on the coronavirus.dc.gov website that also purportedly shows school cases, but reported a separate, even lower number, which means it is excluding known cases. 

DC Health’s poor data quality can also be seen in its reporting of asymptomatic testing. On this page, showing the number of tests administered at each school, there were anomalies in data for the week of May 15. Several schools listed substantially more tests than in a standard week. Some schools like John Lewis Elementary (formerly West) or the Stevens Early Learning Center reported more tests than they have students enrolled at the school, according to OSSE’s SY21-22 official enrollment audit. On the official count in October, John Lewis Elementary had 371 students enrolled and Stevens Early Learning Center had 62.

Here are some screenshots:

Even more disturbingly, Stevens does not participate in the in-school asymptomatic testing program at all. Because pre-k students generally cannot successfully complete the saliva tests used in the asymptomatic testing program, DCPS provides nasal swab rapid tests to pre-k students to complete each weekend before returning to school on Monday. Although DCPS required it of pre-k students until March, it now only “highly encourages” parents of pre-k students to administer these tests and submit results each week. So, as a school with only pre-school students, Stevens should have reported 0 in-school asymptomatic tests, not 73.

Similar errors in the data for the week of March 20 went uncorrected for more than a month.

FOIAs Not Fulfilled

On January 22, I submitted a FOIA request to DC Health (2022-FOIA-02812) for documents to fulfill all data that the law required as of October 26 and that had not been provided, including

–The number of students who tested positive for COVID-19, broken out by LEA, school, and grade level;
–The number of school personnel who tested positive for COVID-19, broken out by LEA and school;
–The total number of students tested, broken out by LEA, school, and grade level;
–The total number of school personnel tested, broken out by LEA, school, and grade level;
–The number of students in quarantine, broken out by LEA, school, and grade level; and
–The number of school personnel in quarantine, broken out by LEA, school, and grade level.

On February 14, I got a response that gave no information or justification for denial, but just provided a list of what little had already been posted and a projected timeline for producing a limited number of metrics. Apart from the asymptomatic testing results web page introduced by DC Health mid-February, none of the promised metrics were ever shared publicly.

I appealed this non-response to my FOIA request, and on March 8, the mayor’s office of legal counsel requested a response from DC Health. Since then, I have not received any updates on the status of my appeal or any additional documents.

In the meantime, on February 28, DC Health changed the metrics they report on the coronavirus.dc.gov website, including stopping updating this page, which had previously reported school quarantines and listed case totals for DCPS students and personnel separately. Now, school cases are reported by DC Health only on this page, which has many still-unresolved errors including missing schools and undercounting of documented cases.

On April 25, I submitted a second FOIA request (2022-FOIA-05730) to DC Health, specifically about the quarantine data that coronavirus.dc.gov used to partially report. I requested the data through the present starting from February 28, when this page stopped updating. On May 13, DC Health responded, again providing no documents, but claiming that the agency does not now nor ever has collected that information, because the law does not require it to “collect, receive, possess, or control” the data. 

This is a distinction without meaning:

While the law does not use those specific verbs, it does require DC Health to “make available” and “update” these data. Obviously, “receiving” and “possessing” the data would be a prerequisite for doing that. When DC councilmembers inquired, they received similar responses, affirming that DC Health does not collect this information and does not feel responsible for doing so.

In fact, the responses that DC council and I received said that DCPS and OSSE would need to collect these data from schools, not DC Health. But DC Health alone is responsible for that data per B24-0403 and B24-0413. Moreover, DC Health has said it meets weekly with DCPS and OSSE, so there is no reason for the agency to NOT have requested the data by now. I subsequently submitted an identical FOIA request to DCPS and on June 6 received notice that DCPS would require a 10-day extension while they continue to search their records.

On June 8, the page where DC Health used to report DCPS quarantines updated for the first time since February 28. There is now one post reporting DCPS students and personnel “positive cases who are currently in isolation” and “identified as close contacts.” DCPS defines close contacts here, but it is unclear if DC Health is using the same definition and what time period this number encompasses.

Additionally, under the current health policy, vaccinated close contacts do not need to quarantine unless they develop symptoms, so close contacts cannot be used as a proxy for the number of people in quarantine. While it is generally better to have more data than less, these figures do not fulfill any of the reporting requirements laid out in B24-0403 and B24-0413. It is also uncertain what they are actually measuring. As of June 12, this is the status of the data reporting requirements of B24-0413:

I recently submitted a complaint to the DC Office of the Inspector General (OIG) about ongoing noncompliance with DC covid school reporting laws, including all of this information and more. It’s the OIG’s policy not to provide updates on investigations, but I hope we will see the results of an investigation at some point. In the meantime, I continue to update whatever school covid data I can find at https://dcpscoviddash.wixsite.com/website.

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