State says D49’s refusal to report positive COVID cases to health officials is unlawful

FALCON, Colo. (KRDO) -- On Thursday, Falcon School District 49 in El Paso County doubled down on its policy to not report positive COVID-19 cases among their students and staff to local health officials.

In an email obtained by 13 Investigates, the principal of Odyssey Elementary told parents Thursday that three staff members tested positive but they would not report those cases to public health leaders because they are not required to do so because it isn't considered an outbreak.

However, the Colorado Department of Public Health and Environment says the El Paso County school district is required by Colorado state law to do so.

In addition to the email, more parents of D49 students reached out to 13 Investigates with concerns over their school's new COVID-19 reporting policy.

During a D49 school board meeting on August 12th, D49's Chief Educator Officer Peter Hilts told board members the district will not report single COVID-19 cases to El Paso County Public Health.

"We have taken the position that we are not reporting single cases," said Hilts during the board meeting last week. "I want to read from you the guidance from the El Paso County Health that says schools and child care facilities are also encouraged (not required) to report single cases of which they become aware."

El Paso County Public Health told 13 Investigates its guidelines are based on the Colorado Department of Public Health and Environment's guidelines.

Hilts goes onto say their reasoning for the decision not to report individual cases to El Paso County health is due to the fear that they will be forced to over-quarantine. However, school districts are permitted by the state and local health officials to set their own policies regarding quarantining for COVID-19 cases.

"We know that we over-quarantined last year, and we know that the disruption of the mitigation efforts turned out to have been more harmful than the disruption of the disease process itself," said Hilts. "So we are exercising local control, and we are making decisions that match our community's conditions, expectations, and preferences."

According to the Colorado Department of Public Health and Environment’s school district guidance for the upcoming school year, 'schools and child care facilities are also encouraged to report single cases of which they become aware to their local public health agency, even if testing was performed elsewhere.'

Individual cases may be 'encouraged' but schools and child care providers are required to report all COVID-19 outbreaks.

If school personnel perform and interpret rapid testing on-site, they are functioning as a clinical lab and are required to report all results.

District 49 said in a letter issued Thursday that "it is not the school's responsibility to take on the reporting responsibility of a testing lab or medical provider."

Despite the recommendation, CDPHE goes onto say in an email to 13 Investigates that “failure to appropriately report diseases is an unlawful act that could result in a misdemeanor charge, and is subject to fines and jail time.”

Gov. Jared Polis reiterated this sentiment during a Wednesday press conference when he was asked about D49’s COVID-19 reporting policy. 

“Of course cases are reported to county health, need to be reported to county health that is the law. That is unambiguous.” 

On Thursday, 13 Investigates asked Rachel Herlihy with the Colorado Department of Public Health and Environment if it is unlawful for Colorado school districts not to report individual COVID-19 cases or outbreaks to local health officials. 

“Our state statute and our state regulations, so Colorado law does outline that both cases of reportable conditions and COVID-19 would be considered a reportable condition, as well as suspected and confirmed outbreaks are required to be reported to Public Health by law. So that certainly is a requirement here in the state and would be an expectation that those cases and outbreaks would be reported to either local public health or the state health agency.” 

El Paso County Public Health declined 13 Investigates an on-camera interview, but provided a statement:

The state clarified that positive COVID-19 cases and outbreaks are required to be reported under Colorado State Statute. We are awaiting further clarification from the Colorado Department of Public Health and Environment to see whether their school guidance will be updated to align with (the) statute.

El Paso County Public Health

D49 spokesperson David Nancarrow said he is working on our request for more information about the district's COVID-19 reporting policy.

Our team also reached out to other school districts within El Paso County to see how other districts are reporting positive cases.

Academy District 20 in Briargate says it has ‘never stopped reporting positive COVID-19 cases to El Paso County Public Health’.

“We are working right alongside them and follow their current COVID-19 requirements,” said a spokesperson of D20 in an email to 13 Investigates. “Right now, we send them a weekly update of our positive cases. In fact, we keep track of all COVID-19 cases and make it available to the public through our COVID-19 Dashboard that is updated every weekday.”

13 Investigates also reached out to Colorado Springs School District 11 and Cheyenne Mountain School District 12, but neither school district has responded. 

If you have a tip or lead you want our team to investigate, please email us at 13Investigates@krdo.com.