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| Montana Administrative Register Notice 37-873 | No. 1 01/17/2020 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On June 21, 2019, the Department of Public Health and Human Services published MAR Notice No. 37-873 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 795 of the 2019 Montana Administrative Register, Issue Number 12. On July 26, 2019, the department published a notice of extension of comment period until September 16, 2019, at page 1016 of the Montana Administrative Register, Issue Number 14.
2. The department has amended the following rules as proposed: ARM 37.111.834 and 37.111.842. The department has repealed the following rule as proposed: ARM 37.111.831.
3. The department has adopted the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
NEW RULE I (37.111.826) INDOOR AIR QUALITY (1) remains as proposed. (2) Air filters (a) The department recommends that schools with ventilation systems using MERV rated air filters change their filters to MERV 13 or greater during times of poor outdoor air quality. (b) Schools using electrostatic air filters must clean the filters according to manufacturer specifications. (3) The school facility manager, school administrator, lead teacher, or other administrator-approved staff (a) Schools must maintain records of indoor air quality inspection on site for no less than three years and the records must be made available to the local health authority and the department upon request.
AUTH: 50-1-206, MCA IMP: 50-1-206, MCA
NEW RULE II (37.111.827) OUTDOOR AIR QUALITY (1) Schools (2) Schools must have a protocol in place on how to limit the infiltration of
AUTH: 50-1-206, MCA IMP: 50-1-206, MCA
NEW RULE III (37.111.813) SCIENCE, (2) Schools containing science labs, (3) (a) The dCHO has primary responsibility for ensuring the implementation of all components of the (b) The school Chemical Hygiene Officer (sCHO) must oversee the implementation and enforcement of the schools' CHP at their school(s). A science chairperson, (4) (a) The SDS must also be kept in a secure, remote site outside of the science labs,
(5) remains as proposed. (6) Unused hazardous materials must be disposed of in a timely manner as stated by the manufacturer and approved by the
AUTH: 50-1-206, MCA
NEW RULE IV (37.111.802) INCORPORATION BY REFERENCE (1) For purposes of this subchapter, the department adopts and incorporates by reference the following: (a) Department of Public Health and Human Services and Department of Environmental Quality "Recommendations for Outdoor Activities Based on Air Quality for School and Child Care Facilities" ( (b) through (2) remain as proposed.
AUTH: 50-1-206, MCA
4. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
37.111.801 DEFINITIONS (1) through (6) remain as proposed. (7) "First-draw sample" means a (8) through (15) remain as proposed. (16) "Local education agency (LEA)" means the local school district board of trustees recognized as the administrative agency for a public elementary or secondary school. (16) remains as proposed but is renumbered (17) (18) "Pest" means any animal, plant, or other organism which has a harmful effect on humans, their food, or the conditions of their school, workplace, home, or recreation sites. (19) "Radon" is a colorless, odorless, tasteless gas and comes from the natural breakdown of uranium in the ground.
(19) and (20) remain as proposed but are renumbered (22) and (23).
AUTH: 50-1-206, MCA
37.111.804 PRECONSTRUCTION REVIEW (1) Before construction commences, plans for construction of a new school or an addition to or an alteration of an existing school must be submitted to the department or local health authority for review and approval. Plans must include the following where applicable: (a) location and detail of classrooms used for science or science laboratories, (b) through (2) remain as proposed. (3) Schools (4) The topography of the site must permit good drainage of surface water away from the school building to eliminate significant areas of standing water and infiltration of surface water into the school building.
(8) Janitorial storage spaces must be constructed to meet the following requirements: (a) must be lockable; (b) must include a storage area for equipment and chemicals; and (c) must be vented to the outside of the building. (9) Hot and cold water must be provided to handwashing sinks and shower facilities. Hot water must not be below 100° F nor exceed a temperature of 120° F. (10) The department recommends the use of radon prevention strategies in new construction.
(8) remains as proposed but is renumbered (12).
AUTH: 50-1-206, MCA
37.111.805 EXISTING BUILDING: CHANGE OF USE (1) An existing building not currently used as a school may not be used as a school without the prior approval of the department or local health authority. (a) When a proposal to use an existing building as a school involves physical modification, plans meeting the requirements of ARM 37.111.804(1) through (b) The use of modular or mobile buildings in response to temporary or permanent closure of the existing school facility, segments thereof, or classroom overflow may be granted a one-year written exemption from the requirements of ARM 37.111.804 by the department or local health authority. Plans to continue use of modular or mobile buildings past one year must be shared with the local health authority or department.
AUTH: 50-1-206, MCA
37.111.810 INSPECTION (1) Representatives of the department or local health authority must be permitted to enter any school at any reasonable time for the purpose of making inspections to determine compliance with this subchapter. Annual (2) and (3) remain as proposed. (4) Following each inspection, representatives of the department or local health authority
AUTH: 50-1-206, MCA
37.111.811 PHYSICAL REQUIREMENTS (1) A school must comply with the following physical requirements:
(b) remains as proposed but is renumbered (a).
(e) Food is not allowed to be stored in refrigeration units with medications. (f) (g) The school must provide reasonable accommodations for (i) access to a (ii) through (iv) remain as proposed. (h) The school must take measures consistent with the programmatic and developmental needs of its students to ensure the safe use and secure storage of any equipment including but not limited to: kitchen appliances, (i) To reduce the spread of animal-borne diseases, livestock and poultry must be located more than 50 feet from food service areas, offices, or classrooms except those offices and classrooms associated with animal husbandry activities or other demonstrations as approved by the school administration. In classrooms, offices, or food service areas where livestock and poultry are approved by the administrator, animals must not have contact with eating or serving surfaces. (2) remains as proposed.
AUTH: 50-1-206, MCA
37.111.812 SAFETY REQUIREMENTS (1) Janitorial and other storage areas that contain toxic or hazardous materials must be kept locked between periods of use. Custodial closets, boiler rooms, and other areas where hazardous or poisonous compounds are stored (2) and (3) remain as proposed.
(5) remains as proposed but is renumbered (4).
(7) and (8) remain as proposed but are renumbered (5) and (6).
(11) remains as proposed but is renumbered (9).
AUTH: 50-1-206, MCA
37.111.825 HEALTH SUPERVISION AND MAINTENANCE (1) and (2) remain as proposed. (3) If a (a) isolate the (b) if the individual is a student, inform the parent or guardian as soon as possible about the illness and request him or her to pick up the (c) consult with a physician, other qualified medical professional, or the local county health department to determine if (4) Schools shall develop and enforce policies on first aid which include, at a minimum, the following: (a) and (b) remain as proposed. (c) emergency coverage, including the presence of a person with a (5) In addition to the requirements of 50-40-104 and 20-1-220, MCA, "no tobacco use/electronic cigarette" signs must be posted at school building entrances and should be clearly visible (6) In addition to the requirements of this rule, school officials should also be aware of the need to comply with the laws and rules relating to the immunization of children in ARM Title 37, chapter 114 and communicable disease reporting in 37-2-301, MCA. Copies of these requirements may be obtained from the Department of Public Health and Human Services, Public Health and Safety Division, (7) remains as proposed.
AUTH: 50-1-206, MCA
37.111.832 WATER SUPPLY SYSTEM (1) through (7) remain as proposed. (8) (a) Schools (b) The schematic and inventory (c) remains as proposed. (d) Each first-draw sample for lead must be (e) All sample results must be submitted electronically to DEQ in a format approved by the department. All sample results must be submitted to DEQ no later than (f) through (h) remain as proposed. (9) By September 1, 2021, (a) Schools (b) Flushing will be required following any period of time during which the school is inactive. (c) remains as proposed.
Table 1.
Table 2.
AUTH: 50-1-206, MCA
37.111.833 (a) connect to a public (b) if the school is not utilized by more than 25 persons daily at least 60 days out of the calendar year, including staff and students, and an adequate public (2) remains as proposed. (3) A
AUTH: 50-1-206, MCA
37.111.840 LAUNDRY FACILITIES (1) remains as proposed. (2) Towels and other laundry items must be machine washed at a minimum temperature of 120°F for a minimum time of ten minutes and dried to greater or equal to 130°F for ten minutes in a hot air tumble dryer.
AUTH: 50-1-206, MCA
37.111.841 CLEANING AND MAINTENANCE (1) A school must comply with the following cleaning and maintenance requirements: (a) through (l) remain as proposed. (m) All cleaning supplies need to have an (n) and (o) remain as proposed.
AUTH: 50-1-206, MCA
37.111.846 NOXIOUS PLANT AND ANIMAL CONTROL (1) through (4) remain as proposed. (5) Schools must develop and implement an approved Integrated Pest Management (IPM) program beginning September 1, (6) and (7) remain as proposed. (8) Except as provided in (9)(c), at least 24 hours before the application of a pesticide to an area of the school that is used by or is accessible to (a) through (i) remain as proposed. (9) During the school term the required notification must be made by individual notice delivered by phone, face-to-face oral communication, electronic mail, postal mail, or facsimile. A school or school district may also develop a registration system to provide this notification only to those parents who wish to receive the notification. If the school or school district develops a registration system, the school administrator must provide written notice to the parents or guardians of the (a) remains as proposed. (b) Immediately before starting the application of a pesticide, the certified applicator must post in the area of the school where the pesticide is to be applied, a sign 8.5x11-inch in size, or greater. (c) A school administrator may authorize an immediate pesticide treatment without prior notification if the school administrator determines an emergency exists. An emergency includes an immediate and unanticipated threat to the health and safety of the individuals at the school. An emergency does not exempt the school from the requirements of (d) through (d)(ii) remain as proposed. (iii) applications of rodenticides in tamper-resistant bait stations or in areas inaccessible to (iv) applications of silica gels and other ready-to-use pastes, foams, or gels that will be used in areas inaccessible to (10) and (10)(a) remain as proposed. (b) If a school administrator authorizes a pesticide application under (9)(c), all the information that is required in a notice under (c) Records
AUTH: 50-1-206, MCA
5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: A commenter submitted a comment in support of the proposed rules and expressed concern for their grandchildren who attend Montana schools.
RESPONSE #1: The department thanks the commenter for their support.
COMMENT #2: A commenter expressed concern with the transparency of the rule revision process and requested an extension of the public comment period.
RESPONSE #2: The department developed the proposed rules with input from partners and provided stakeholders multiple opportunities to participate. Stakeholders from whom the department solicited feedback on the draft proposal of the rules included the Office of Public Instruction (OPI), School Administrators of Montana, Montana School Boards Association, Montana Association of School Nurses, Department of Labor and Industry, MEA-MFT, Quality Education Association, Montana Rural Education Association, Montana Indian Education Association, Montana Small School Alliance, Montana Association of School Business Officials, and the Montana Board of Public Education. Additionally, all stakeholders have had the opportunity to participate in the rulemaking through the public hearing and comment period provided for under the Montana Administrative Procedure Act (MAPA). The department extended the public comment period to September 16, 2019.
COMMENT #3: Multiple commenters expressed a concern that it may be difficult for schools to comply with all the rule changes at the same time. Commenters suggested a staggered implementation of the rules.
RESPONSE #3: The department has set staggered implementation dates for the rules.
COMMENT #4: A commenter expressed concern about the rules and asked the department to reconsider the rules, as the commenter felt that they are onerous, will be another unfunded mandate that will burden schools financially, and are unnecessary as schools already have policies and procedures necessary for these safety issues.
REPSONSE #4: The department disagrees with the commenter on multiple points. While some schools may have policies in place that address different aspects of the proposed rule amendments, many schools do not have sufficient policies in place to fully protect their students and staff by providing safe and healthy learning environments. Many of the rule changes are updates meant to align with current laws and best practices. The rule changes which will result in significant fiscal impact will be supported by funding from the department and partner organizations like the DEQ.
COMMENT #5: A commenter offered the opinion that the rules are not clear or concise and left many open questions. The commenter's general stance was that the proposed rule amendments should not be approved for multiple reasons. The commenter felt that it is not possible for their school district or other districts to comply with the rules by October 1, 2019. The commenter also stated that the proposed rules would create a funding crisis and a new district position would be needed, as adding this work load onto an already busy employee would not be prudent.
The commenter requested that the department go back and work with school districts across the state to discuss how schools can improve safety procedures in Montana schools.
RESPONSE #5: Due to the extended comment period, schools will not be required to comply with any additions or changes to the rules by October 1, 2019. The department has included additional language in the rule that allows for staggered implementation of the rules over multiple years. The department has added language to emphasize school district local control. The majority of proposed rule changes allow for individual schools to set policies that work best for them while still meeting the rule requirements.
The department disagrees that the rules would create a funding crisis. Many school districts are already meeting various rule requirements that have been added to this rule to match current laws and best practices. Schools will have multiple years to comply with the rules to the best of their ability. The department and other partners will provide technical assistance.
COMMENT #6: A commenter questioned whether implementing the water lead testing requirement on October 1, 2019 is feasible for schools.
RESPONSE #6: Due to the extended comment period, schools will not be required to comply with any additions or changes to the rules by October 1, 2019. The department has included additional language in the rules that allow for staggered implementation of the rules over multiple years.
COMMENT #7: A commenter requested that the lighting and heating sections in the current rules be kept because they are necessary to protect the health and safety of students and staff. The commenter also maintains that the sections help the department collaborate with state and federal regulatory authorities.
RESPONSE #7: The department is not proposing to amend the lighting standards set forth in ARM 37.111.830. Heating requirements were removed because they are addressed in the international building code applicable through Department of Labor and Industry administrative rules.
COMMENT #8: Multiple comments from the OPI disagreed that the only significant fiscal impact for schools would be from lead testing requirements. The commenters shared information from a survey of schools that indicated a need for training, technical assistance, and financial resources. Commenters also stated that schools expressed concern they would not be able to meet multiple rule requirements due to staff limitations. Surveyed schools were unable to determine potential financial impacts based on information provided by the surveyor. Some schools felt that there would not be significant fiscal impacts based on the information they have been given.
RESPONSE #8: The department disagrees that there will be additional significant, measurable fiscal impact. The department has included staggered implementation dates for multiple subsections of the rules to ease any administrative burden on schools. The department also plans to provide training and technical assistance to assist schools in implementing the rules. Multiple rule provisions have been moved to the pre-construction section so that current schools may be grandfathered in.
COMMENT #9: Multiple commenters from the OPI requested that the department develop guides, checklists, and sample policies for districts which can be customizable by district size. The commenters state these resources will be instrumental in assisting schools with implementation of these rules.
RESPONSE #9: The department will develop guides, checklists, and sample policies for districts. These materials will be distributed to schools in 2020 and on an ongoing basis as new guidance is developed.
COMMENT #10: A commenter felt that the number of changes placed on schools at one time creates an implementation burden. The commenter would like to understand the timeline as well as the resources available to support school districts of various sizes. The commenter would also like to know the expectations of their involvement.
RESPONSE #10: The department added staggered implementation dates throughout the rules to address the concerns expressed by this commenter and others. The department will work with schools, local health authorities, the DEQ, education partners, and other government and non-profit organizations to inform and support school districts as they work towards creating and maintaining healthy learning environments.
COMMENT #11: Multiple commenters expressed that tasks required of schools under the proposed rules are outside the scope of educator training and may require specialized training and support. Due to this, the commenters requested a staggered implementation to allow schools to effectively implement each new change.
RESPONSE #11: See Response #5.
COMMENT #12: A commenter expressed concern about jurisdiction over Hutterite colonies and who is responsible for ensuring these schools are compliant.
RESPONSE #12: The school districts responsible for the oversight of Hutterite colony schools are ultimately responsible for ensuring these schools comply with these rules to the best of their ability. If Hutterite schools are nonpublic and nonaccredited, the school rules would not apply to them.
COMMENT #13: Multiple commenters requested the department extend the comment period on the proposed rulemaking to the end of September 2019 because schools are not currently in session.
RESPONSE #13: The department extended the comment period to September 16, 2019.
COMMENT #14: A commenter requested the department and DEQ include stakeholders in the rulemaking process in a meaningful way.
RESPONSE #14: See Response #2. The department has carefully considered all comments received, which has led to the revision of the proposed rules as set forth in the final adoption notice.
COMMENT #15: A commenter requested the department provide a list of which education advocates and persons at the OPI the department contacted as part of the proposed rulemaking.
RESPONSE #15: The department has provided the list of individuals and organizations to the commenter.
COMMENT #16: A commenter requested the department participate in informal discussions about the proposed rulemaking with stakeholders and asked the department to be more transparent and collaborative during the rulemaking process.
RESPONSE #16: See Response #2. The department has been transparent and worked collaboratively with stakeholders throughout development of the rules.
COMMENT #17: A commenter stated the majority of the proposed rules will negate local control of Montana's school systems.
RESPONSE #17: The department disagrees. Schools are responsible for providing safe learning environments for their students and staff. The majority of these rules allow schools to determine school and district policies and procedures to comply with these fundamental health and safety rules.
COMMENT #18: A commenter stated she opposes the rules as currently written and the process leading to the proposed rules. The commenter also stated the rules need to be revised to ensure they are not an "empty mandate" to schools.
RESPONSE #18: The response to comment # 2 addresses involvement of stakeholders as part of the rulemaking process. The department disagrees the rules are an "empty mandate."
COMMENT #19: Multiple commenters stated the OPI was not meaningfully included in the rulemaking process. The commenters stated the copy of the draft rules provided in August of 2018 to OPI was significantly different from the proposed rulemaking notice.
RESPONSE #19: The department disagrees. The response to Comment # 2 addresses involvement of stakeholders as part of the rulemaking process. The OPI was afforded the opportunity to provide public comment like any other individual or organization and has done so. The proposed rules, as filed, are not substantively different from the draft that was shared with OPI in August of 2018.
COMMENT #20: A commenter stated the department failed to follow through with its commitment to continue to consult with stakeholders on the proposed rules following the August 2018 draft copy of the rules.
RESPONSE #20: The department disagrees. After receiving feedback from a fraction of the consulted stakeholder organizations, the department offered to share a final draft with stakeholders when the draft was ready to be submitted. The department notified stakeholders when the proposed rulemaking notice was filed.
COMMENT #21: Multiple commenters from OPI stated that the department's fiscal impact statement is inadequate because the rule will have a significant fiscal cost beyond just lead testing, such as record keeping, administrative expenses, training, and technical assistance costs of implementing the rules. The commenters further stated that school staff will have to spend significant time to implement new requirements within the rules, which will take time away from educating students.
RESPONSE #21: The department disagrees and believes the fiscal impact statement was appropriately drafted. The rules can be successfully implemented with limited additional time investment on the part of current school staff. The department has included staggered implementation dates and is committed to providing guidance and technical assistance to schools to reduce any perceived administrative burden.
COMMENT #22: A commenter stated that persons directly affected by the rules have not had an opportunity, or been afforded the opportunity by the department, to meaningfully participate in the rulemaking process.
REPSONSE #22: See Response #2.
COMMENT #23: A commenter requested the department communicate with schools about potential sources of funding available to implement the rules.
RESPONSE #23: The department will continue to communicate with schools about available funding to assist with the rule implementation.
COMMENT #24: A commenter stated that all schools are not the same and the proposed rules need to take into account the unique nature of rural schools. The commenter noted there are 92 one-teacher schools in Montana and many of these school systems have no administrator onsite, at most a "lead teacher." The commenter referenced prior comments which included a breakdown of enrollment by school system size. The commenter pointed out lead teachers at these schools will be responsible for implementing the rules within their respective schools.
RESPONSE #24: The department has revised the rules to address challenges faced by rural schools. The department has added staggered implementation dates to allow schools multiple years to establish and implement policies required by the rules. The department has also moved several requirements to the pre-construction rule (ARM 37.111.804) to avoid imposing structural alterations for existing schools that may not have the resources to make changes.
COMMENT #25: A commenter stated the impact of the proposed rules should be considered not just in the context of individual schools, but on school systems.
RESPONSE #25: The department considered the impact on school systems in the course of developing and proposing these rules.
COMMENT #26: A commenter stated the statement of reasonable necessity should address the number of students in Montana who have asthma rather than using nationwide data. The commenter stated Montana data, rather than nationwide data, should be the driving force behind the rules.
RESPONSE #26: Nationwide and Montana data on the number of school children who have asthma is nearly identical. Nearly 1 in 12 Montana children and nearly 1 in 13 children nationwide have asthma.
COMMENT #27: A commenter stated the data behind the proposed rules is compelling.
RESPONSE #27: The department thanks the commenter for their support.
COMMENT #28: A commenter suggested the department consider a 2008 study conducted for the Montana legislature on schools.
RESPONSE #28: The department has reviewed the 2008 study.
COMMENT #29: A commenter stated the department should consider how schools will actually implement the proposed rules.
RESPONSE #29: The department has considered this throughout development of the proposed rules and will provide example policies, checklists, forms, technical assistance, and guidance to assist schools with implementation of the adopted rules.
COMMENT #30: A commenter proposed that the department add the American Health and Safety Institute First Aid and CPR certification to a list of accepted valid first aid and CPR certifications that must be maintained by staff members present at school events.
RESPONSE #30: The department agrees. Language has been added to ARM 37.111.825 that qualifies the American Health and Safety Institute first aid and CPR certification as a valid first aid and CPR certification.
COMMENT #31: A commenter remarked that the new requirement to have a CPR certified person attending all activities and field trips could be a difficult task.
RESPONSE #31: The requirement to have a CPR certified person attending all activities and field trips already exists under ARM 37.111.825 and is not a new requirement under the proposed rules.
COMMENT #32: A commenter asked if the requirements under ARM 37.111.805, Existing Building: Change of Use, apply to a new or used mobile/portable modular building brought on premises that is intended to be a temporary or permanent setting for additional office, storage, classroom, or other extra functional space.
RESPONSE #32: Language was added to the rule allowing schools to apply for an annual exemption of up to one year for modular or mobile buildings. Exemptions must be approved by the department.
COMMENT #33: Several commenters requested that the department address what they view as a threshold issue involving application of 1-2-113, MCA et seq. The commenters stated these statutory provisions prohibit adoption of the rules or require an extension of the implementation date until such time as the legislature provides a means to fund implementation of the rules. The commenters requested that the department either provide a direct source of funding to allow schools to comply with those new mandates out of its own state and federal sources of revenue, or, in the alternative, that the department delay the effective date of its rules as required by 1-2-113, MCA.
RESPONSE #33: The rules have been proposed in compliance with the MAPA and the department's rulemaking authority under 50-1-206, MCA. The department does not believe the provisions of 1-2-113, MCA, et seq, are applicable. Funding has been secured to cover the initial cost of lead testing required under ARM 37.111.832. The department will continue to work with schools to locate additional sources of funding to assist with implementation of the rules.
COMMENT #34: A commenter asked what is to be done with inspection forms used by the school to conduct indoor air quality inspections.
RESPONSE #34: The department has revised the rules to clarify that schools are required to maintain these records on site for no less than three years under New Rule I (37.111.826).
COMMENT #35: A commenter asked how administrators will be trained on conducting annual ventilation system checks to ensure they operate within manufacturers' parameters.
RESPONSE #35: The department will provide a brief checklist for schools to use to assist with ventilation system checks. Ventilation system manufacturers provide operating and maintenance instructions. Schools may contact system manufacturers or HVAC maintenance professionals for system specifications.
COMMENT #36: A commenter asked how much time it takes to complete the annual indoor air quality inspection including the inspection, potential staff training, and finalizing the report.
RESPONSE #36: The annual internal inspection checklist, to be provided by the department, is two pages in length. The overall time spent on the inspection depends on the size of the school building or buildings. The inspection may take as little as 30 minutes to 2 hours in small to medium-sized schools and anywhere from 1 to 5 hours in larger schools with multiple buildings. Inspections can be conducted at any time through the calendar year.
Training is not required, though the department will explore opportunities to provide indoor air quality trainings for interested facility managers, lead teachers, and administrators.
There is no additional reporting required beyond completion of the checklist and no additional significant time is needed to finalize or file the report. The school must maintain records of the checklist but is not required to post the results online.
COMMENT #37: A commenter asked how the department determined there would be no anticipated fiscal impact from New Rule I (37.111.826) on indoor air quality.
RESPONSE #37: The department determined that several components of internal air quality inspections are already conducted by maintenance or facility management staff in many schools. Schools are being asked to assess the condition of the roof and attic, ground level air intakes and outtakes, exhaust vents, bathroom drains, chemical usage and ventilation, radon levels, combustion appliances, and the condition of interior paint. Schools should complete the checklist to the best of their ability.
The inspection may take as little as 30 minutes to 2 hours in small to medium-sized schools and anywhere from 1 to 5 hours in larger schools with multiple buildings. Inspections can be conducted at any time throughout the calendar year. Schools not performing the basic components of an indoor air quality inspection may be putting the health of their students and staff at risk.
COMMENT #38: A commenter recommended that indoor air quality inspections and ventilation system checks be performed by staff at the local health department who are trained on air ventilation systems to reduce the burden on schools.
RESPONSE #38: Inspections can be easily conducted by facility managers or other school staff approved by the administrator using the two-page checklist to be provided by the department. Schools are welcome to request assistance from the local health department to perform indoor air quality inspections, but these inspections and ventilation system checks are ultimately the responsibility of the school.
COMMENT #39: Multiple commenters requested that schools with air filters be required to use filters rated between MERV 8 and 13 as recommended by the National Air Filtration Association and the Environmental Protection Agency. Commenters also proposed changes to the rule language which would require schools to use MERV 13 or greater efficiency filters during wildfire smoke events.
RESPONSE #39: Changes have been made to require that schools with air filters must use filters rated between MERV 8 and 13 if their HVAC system is capable. It is recommended that schools use filters with greater efficiency during wildfire smoke events, but the department will not require this.
COMMENT #40: A commenter suggested revising New Rule I (37.111.826) and provided language to correct grammar and improve language clarity.
RESPONSE #40: The department has revised New Rule I (37.111.826) in response to this comment and others received during the comment period.
COMMENT #41: A commenter suggested adding a requirement that schools must address asthma prevention by developing a comprehensive school program based on the most current medical guidelines. The commenter indicates that this is needed to help schools effectively protect the rising levels of asthma, and related effects, in children.
RESPONSE #41: While asthma is a leading cause of school absenteeism, the department believes it is best to let the schools determine their chronic disease policies.
COMMENT #42: Multiple commenters suggested adding a requirement for radon testing and provided evidence supporting the health risks of elevated radon levels, as well as proposed testing and a mitigation plan.
RESPONSE #42: The department understands the risk of radon and has added language recommending new construction use radon prevention strategies. The department will provide guidance on what these techniques include. Schools will not be required to test for radon at this time. The department will continue to work with schools and local partners to encourage radon testing.
COMMENT #43: A commenter expressed concern that there is no deadline for compliance with New Rule I (37.111.826) "Indoor Air Quality." The commenter also asked if there is a recommendation for electrostatic filters that do not have MERV ratings.
RESPONSE #43: The department has set an effective date of September 1, 2020, for implementation of this rule. The rule has been revised to clarify that HVAC filter efficiency requirements only apply to HVAC systems with these types of filters. Language was also added to the rule requiring schools using electrostatic air filters to clean the filters according to manufacturer specifications.
COMMENT #44: A commenter recommended the department develop a notification system for administrators, so they do not have to search for and monitor the changing air quality standards from the department.
RESPONSE #44: Air quality standards do not change. Air quality standards and health effect categories embraced by the department are based on the National Ambient Air Quality Standards. The recommended outdoor air quality and activity guidelines were developed by the department and the DEQ with input from the OPI. School administrators are responsible for assessing air quality using ambient air quality readings from the DEQ, other local air quality monitors, or visibility guidelines. The DEQ maintains the Today's Air website, which houses links to air quality guidelines and standards along with hourly air quality data for making decisions. Upon assessing air quality, the school and district have authority to cancel or proceed with outdoor events.
COMMENT #45: Multiple commenters stated New Rule II (37.111.827) "Outdoor Air Quality" is vague and asked what the best practices are for sealing a school building to outside air during poor air quality.
RESPONSE #45: The department will provide a sample protocol schools can modify to fit their school campus. The department is requesting that schools close the building off to outside air to the best of their ability. Actions will vary from school to school, but some simple steps may include closing windows, keeping exterior doors closed as much as possible, posting signage asking students, staff, and visitors to not prop open exterior doors, setting HVAC system air conditioners to recirculate if possible, changing HEPA filters to MERV 13 or greater efficiency in HVAC systems, and using portable air cleaners. The rule has been revised for clarity.
COMMENT #46: A commenter asked how training and technical assistance will be provided to schools regarding the best practices of sealing a school building.
RESPONSE #46: No training is needed to understand how to limit infiltration of outside air into a school during times of poor air quality. A sample protocol will be provided to schools and technical assistance will be provided as necessary.
COMMENT #47: A commenter asked how the department determined there would be no fiscal impact to schools to perform protocol development and implementation under New Rule II (37.111.827) "Outdoor Air Quality."
RESPONSE #47: The department determined that there would be no anticipated fiscal impact because a sample modifiable protocol will be provided for schools and schools can determine their protocol during regularly scheduled school board meetings.
Implementation will vary from school to school based on building specifics and staff capacity. The department is asking schools to determine which strategies will work for their individual situation. The strategies a school chooses will determine whether additional funds will be spent on things like more efficient HEPA filters or portable air cleaners. Schools will have until September 1, 2020 to add a protocol to their school policies and begin implementing the protocol.
COMMENT #48: A commenter asked if the department will provide schools a sample of the protocol, so it can be adopted without each district being required to write their own protocol.
RESPONSE #48: The department will provide a sample protocol that schools can modify to their school campus.
COMMENT #49: A commenter recommended changing the language in New Rule II (1) (37.111.827) from "shall" to "must."
RESPONSE #49: The department agrees. Schools are not required to follow the outdoor activity guidelines, but they are required to consult the guidelines as part of their decision-making process. Schools are encouraged to follow the guidelines and develop policies that will work best for them.
COMMENT #50: A commenter noted that the term "shop" is not current terminology used in education. "Industrial Arts" is the correct terminology to be used in the rules.
RESPONSE #50: The department agrees and has revised the rules accordingly.
COMMENT #51: A commenter asked how it was determined that the development and maintenance of a Chemical Hygiene Plan (CHP) and the designation of a Chemical Hygiene Officer (CHO) would not have a fiscal impact.
RESPONSE #51: The department determined that the development of a CHP could be completed in schools, where applicable, with the help of staff and administrators. Many districts with these types of laboratories are aware of the hazardous chemicals they use. This requirement simply asks schools to establish a more formal method of tracking the storage, use, and disposal of these hazardous chemicals. Schools do not need to dedicate additional FTE in order to designate a CHO. A CHO can be a teacher or administrator with knowledge of the chemicals the school is using. Schools with science, art, and industrial art laboratories will be given multiple years to develop a CHP. The department will provide examples of school CHPs to assist schools with implementing the rule.
COMMENT #52: A commenter asked who will provide the annual training and cover the training costs for someone in the district to be trained as the CHO.
RESPONSE #52: Free laboratory safety and CHO training is available through the Occupational Safety and Health Administration's online OSHAcademy. Additional training may be obtained at the cost of the school district if they feel it is necessary. The department will explore opportunities to bring chemical hygiene trainings to Montana.
COMMENT #53: A commenter stated that one-teacher schools will fail to meet the requirements of the rules if their teacher is not a certified science teacher.
RESPONSE #53: The department disagrees. The department is aware that most one-teacher schools may not have a certified science teacher. The rules do not require that the CHO must be a certified science teacher. The rules require a qualified faculty member. This faculty member should be someone with knowledge of the hazardous chemicals on school grounds. The requirement does not apply to schools that do not have science, industrial, or art laboratories.
COMMENT #54: Multiple commenters expressed concern and sought clarity on application of language in New Rule III (37.111.813) stating, "the department may work with the Department of Labor and Industry to determine if stop work orders are necessary."
RESPONSE #54: The department has revised the rules to remove language referencing stop work orders.
COMMENT #55: A commenter recommended that the department include the acronym for Chemical Hygiene Plan, CHP, to allow for space and cost savings in the rule, and ease of readability.
RESPONSE #55: The department agrees and has revised the rule accordingly.
COMMENT #56: A commenter recommended that Material Safety Data Sheets be changed to Safety Data Sheets to meet current chemical safety convention.
RESPONSE #56: The department agrees and has revised the rules to reflect current chemical safety convention.
COMMENT #57: A commenter recommended alternative language in New Rule III(6) (37.111.813) that would allow for space and cost savings in the rule, and to correctly provide for the oversight of states with jurisdiction over these areas.
RESPONSE #57: The department agrees and has revised the rule to address this recommendation.
COMMENT #58: A commenter asked why SDS sheets must be available to the public online. The commenter stated that SDS need to be available to people working with the chemicals.
RESPONSE #58: The department agrees and has revised the rule language accordingly.
COMMENT #59: A commenter expressed support for New Rule III (37.111.813), but stated the change will require funding to implement as that was a barrier for voluntary changes in prior discussions with schools.
RESPONSE #59: To ease any administrative burden on schools, the department has included a staggered implementation of the rules to allow schools more time to come into compliance.
COMMENT #60: A commenter proposed adding a starting date of September 1, 2020, for New Rule III (37.111.813).
RESPONSE #60: Based on this comment and other comments, the department has revised the rule to establish an effective date of September 1, 2021.
COMMENT #61: A commenter suggested editing the term "designed" to "designated" in (3)(b) of New Rule III (37.111.813).
RESPONSE #61: The department agrees and has corrected this typographical error.
COMMENT #62: A commenter stated that the rules as a whole are difficult to read and when references to external documents are mentioned, it seems laborious to ask school administrators to cross reference citations to understand the requirements. The commenter stated that all requirements should be spelled out in the rule in which they apply without the expectation of school staff doing research to find referenced regulations.
RESPONSE #62: The department disagrees. The publications referenced within the rules have been adopted and incorporated by reference under New Rule IV (37.111.802) in accordance with 2-4-307, MCA. As set forth in New Rule IV (37.111.802), copies of the publications may be obtained from the department.
COMMENT #63: A commenter asked if it is appropriate to put guidelines and handbooks in the rule. The commenter goes on to say that when a new version of the handbook is produced, the rules become outdated.
RESPONSE #63: The publications referenced within the rules have been adopted and incorporated by reference under New Rule IV (37.111.802) in accordance with 2-4-307, MCA. In the event the referenced publications become obsolete or outdated, the department can revise the rules through a future rulemaking process.
COMMENT #64: A commenter stated that districts who run a 4-day school week may not meet the definition of a school as defined in the rules because they are not used at least 180 days per year.
RESPONSE #64: The definition of "school" has been revised to include all schools independent of the number of days the building or buildings are used for instruction throughout the year.
COMMENT #65: A commenter suggested that definitions for the terms "bin placement" and "bin placement sample" be revised so that they are more easily understood by those who are not water quality specialists.
RESPONSE #65: The terms "bin placement" and "bin placement sample" refer to the categories in the table under ARM 37.111.832. The department does not believe that someone must be a water quality specialist to understand the table categories.
COMMENT #66: A commenter recommended including "radon" in the definitions and provided an example definition.
REPSONSE #66: Radon has been added to the definitions section of the rules.
COMMENT #67: A commenter recommended including "sanitarian" in the definitions and provided an example definition.
RESPONSE #67: The definition of sanitarian has been revised.
COMMENT #68: A commenter recommended including "LUX" in the definitions and provided an example definition.
RESPONSE #68: The department disagrees because this proposed rulemaking does not alter lighting standards for schools.
COMMENT #69: A commenter pointed out that the correct term for "home economics" is now "consumer science."
RESPONSE #69: The department agrees and has revised the rules accordingly.
COMMENT #70: A commenter asked how it was determined that the new additions to districts for construction will not have increased economic costs to a school/community. The commenter noted that ARM 37.111.804(4), (5), and (6) appear to add to the cost of constructing a new building.
RESPONSE #70: The department disagrees with the commenter's assessment that this will have a significant economic impact beyond what is already required under existing building code regulations.
All new requirements under (4), (5), and (6) can be easily added into the building plans for any new construction or renovation at a minimal cost.
COMMENT #71: A commenter recommended a revision to ARM 37.111.804(1)(a) to change "venting" to "ventilation" to use current mechanical systems vernacular.
RESPONSE #71: The department agrees and has revised the rule accordingly.
COMMENT #72: A commenter recommended a language change in ARM 37.111.804(3) from "Schools will be constructed" to "Schools must be constructed" to replace false imperative language. The commenter also suggests defining Local Education Agency.
RESPONSE #72: The department agrees. The rule has been revised to correct false imperative language and "Local Education Agency" was added to the definition rule.
COMMENT #73: A commenter recommended a language change in ARM 37.111.804(4) from "All chemical storage areas should be" to "All chemical storage areas must be" to replace false imperative language.
RESPONSE #73: The department agrees and has revised the rule to correct false imperative language.
COMMENT #74: A commenter recommended a language change in ARM 37.111.804(7) from "The department or local health authority shall" to "The department or local health authority must" to replace false imperative language.
RESPONSE #74: The department agrees and has revised the rule to correct false imperative language.
COMMENT #75: In the event, the local health authority is being requested to complete the pre-construction review, a commenter asked that consideration be given regarding local authority capacity. The commenter believes that the activity may require increased local training and funding. The commenter requested that a default clause be included to add the department if the local health authority does not have capacity.
RESPONSE #75: The existing rules require schools to submit plans for construction of a new school or an addition to or an alteration of an existing school. The established rule language already stipulates that schools must submit their plans to the department or local health authority. The department will provide training to sanitarians and other local county health department officials on the various amendments to these rules that will impact their work.
COMMENT #76: A commenter asked if subsections in ARM 37.111.804 are optional because of the term "should." The commenter requests that training and funding be provided if the local health authority is being identified to complete preconstruction reviews.
RESPONSE #76: Rule language has been changed from "should" to "must" to correct false imperative language. Local health authorities and the department are identified as the authorities to perform pre-construction reviews in the existing rules.
COMMENT #77: A commenter asked if a local health authority can charge a time and effort fee for review of a submitted plan review application with regard to new school construction or renovation of an existing school and/or charge a separate site visit fee to perform a pre-operational inspection of the completed new construction or renovations.
RESPONSE #77: Fees that may be charged are outside the scope of this rulemaking process.
COMMENT #78: A commenter suggested ARM 37.111.804 be revised to correct grammar in (1) and to replace false imperative language in (4).
RESPONSE #78: The department agrees and has revised the rule accordingly.
COMMENT #79: A commenter asked what the nature of complaints may be under ARM 37.111.810. The commenter indicated that, as the local health authority in their area, they do not currently respond to complaints, but instead they assess and refer complaints to organizations that can respond based on the type and level of concern.
RESPONSE #79: The department cannot predict the nature of individual complaints that may be submitted to local health authorities. The rule simply states that upon receiving a complaint, the local health authority may determine if more inspections are necessary. If the local health authority determines it is unnecessary to provide additional follow-up, they have the authority to refer the complaint to other local partner organizations.
COMMENT #80: A commenter stated that ARM 37.111.810(4) is awkwardly worded.
RESPONSE #80: The department has revised the rule to provide more clarity.
COMMENT #81: A commenter asked the department to clarify if the school administration would use the same type of department-approved form referred to in ARM 37.111.810 as the local health authority.
RESPONSE #81: Different forms will be created for schools and local health authorities. The internal inspection form will be a brief checklist that follows the requirements of the administrative rules. The department will work with local health authorities to incorporate different aspects of the rule requirements into existing forms used to inspect school food services and other areas of the school.
COMMENT #82: Multiple commenters asked if there will be a mechanism such as a cooperative agreement that establishes the duties and responsibilities of the local health jurisdiction to qualify for reimbursement of time and effort from the department under ARM 37.111.810.
RESPONSE #82: The department will explore funding opportunities to help offset local health authority expenses when performing inspections. Existing rule requirements encourage local health authorities to perform school inspections and require them to conduct plan reviews.
The rule has been revised to allow schools and districts to determine alternative inspection frequency if the local board of health and the local health authority deem it necessary.
COMMENT #83: A commenter suggested ARM 37.111.810 be revised by removing the term "internal" from (1) requiring annual internal inspections by the administrator, facility manager, or other school staff member. The commenter indicated it is redundant to spell out internal when the rule goes on to describe the school staff who must conduct inspections.
RESPONSE #83: The department agrees and has revised the rule accordingly.
COMMENT #84: A commenter suggested removing the language "more often if necessary" and changing it to "as necessary" in ARM 37.111.810. The commenter states this will allow the department and local health authorities more flexibility.
RESPONSE #84: The department agrees with the reasoning provided by the commenter and has revised the rule accordingly.
COMMENT #85: A commenter asked how the department determined there would be no fiscal impact to schools who need to add locks or ventilation to janitorial facilities under ARM 37.111.811.
RESPONSE #85: The existing rules already require janitorial and other storage areas containing toxic or hazardous materials to be kept locked between periods of use. The department has moved the requirement for all janitorial facilities to be locked and ventilated to the pre-construction section of the rules so it will apply only to new construction or additions.
COMMENT #86: A commenter asked how the department will define "adequate" coat/jacket storage under ARM 37.111.811 and if this requirement will impact schools that have students double on locker space.
RESPONSE #86: This requirement is in the existing rules. The department defines adequate coat/jacket storage as sufficient space to hang a coat or jacket without coming in contact with the coat or jacket of another student. All schools must provide "adequate" coat/jacket storage to the best of their ability.
COMMENT #87: A commenter asked if the department will provide a draft policy and procedure to all schools regarding the storage, administration, and lawful disposal of prescription, nonprescription, and over-the-counter medication to assist with the implementation of ARM 37.111.811.
RESPONSE #87: The department will provide example policies and procedures to schools. Schools will be given until the start of the 2021 school year to establish and implement medication policies. The department will provide technical assistance when necessary.
COMMENT #88: A commenter asked if the department can provide an implementation plan for how schools with one staff member will be able to provide a nursing mother reasonable break time to express breast milk and how they can provide a place for the employee to express breast milk under ARM 37.111.811.
RESPONSE #88: The department will not provide an implementation plan for schools to comply with established state and federal law. This section of the rule requires schools comply with existing federal law (29 U.S.C. 207) and state law (39-2-215, MCA) to the extent it is applicable. The department notes that reasonable break time for nursing mothers provided for under 29 U.S.C. 207 does not apply to an employer that employs less than 50 employees. 29 U.S.C. 207(r)(3).
COMMENT #89: A commenter asked if the department will consider an exemption to the requirement under ARM 37.111.811 for schools to provide reasonable accommodations for lactating pupils on the school campus to express breast milk, breastfeed an infant child, or address other needs related to breastfeeding. The commenter suggests an exemption should apply to one room school houses or other buildings where a private and secure room other than the bathroom is not available for breastfeeding. The commenter goes on to ask if a school would need to construct an addition to the facility to meet this requirement, which may have substantial fiscal impacts not addressed in the statement of reasonable necessity.
RESPONSE #89: The department has added an exception to the rule for schools where no such space other than a bathroom is available. Schools are not required to construct additions to the facility in order to comply with the rule.
COMMENT #90: A commenter asked if schools will be found in violation of the rule requiring that all livestock and poultry must be located more than 50 feet from food services areas, offices, or classrooms, if a classroom pet, that is also considered as poultry or livestock, is in the classroom during times of food service.
RESPONSE #90: Poultry or livestock housed in the classroom and approved by the administrator must be caged or contained away from food service areas and the animal must not contact eating or serving surfaces at any time. Additional clarifying language has been added to the rule to account for meals in the classroom.
COMMENT #91: A commenter suggested adding the following provision to ARM 37.111.811: "Medication requiring refrigeration must be kept in a locked, non-portable, mechanical refrigeration unit, manufactured to hold medications at required safe temperatures, and approved by the department. Food is not allowed to be stored in a unit with medications." The commenter stated that this language should be added to ensure students and staff medications are safely stored on site.
RESPONSE #91: The department partially agrees and has revised the rule to include a portion of the proposed language. The department does not believe it is reasonable to require all schools to purchase new refrigeration units when the systems currently in place for most schools are sufficient for the most commonly used medications. Additional language has been added allowing authorized personnel to carry medication for off-site events.
COMMENT #92: A commenter suggested a language change to ARM 37.111.811 to correct and update language to current conventional language.
RESPONSE #92: The department has revised the rule to reflect modern conventional language.
COMMENT #93: A commenter suggested ARM 37.111.811 include over-the-counter medication in the original package with manufacturer label and instructions.
RESPONSE #93: The rule includes over-the-counter medication.
COMMENT #94: A commenter suggested that ARM 37.111.811 be revised to address that medication must be accessible and portable to leave the school with the school nurse. The commenter states this is needed in response to medication administration needs of individual students.
RESPONSE #94: The department has revised the rule to add language to allow for lockable, portable medication containers, that may be transported by the school nurse or other personnel authorized by the school administrator.
COMMENT #95: A commenter suggested adding the following language to ARM 37.111.811: "Shower and bathing facilities must be provided with anti-slip surface mats." The commenter indicates that this is to prevent accidental falls from walking on wet surfaces.
RESPONSE #95: The department recommends that schools use anti-slip surfaces or mats in shower and bathing facilities but will not require it.
COMMENT #96: A commenter asked if other animals, such as birds, turtles, lizards, snakes, frogs, and other types of reptiles or amphibian species, should be added to ARM 37.111.811(1)(i) because they are known to carry Salmonella and E. coli.
RESPONSE #96: The department recognizes the potential for the spread of other diseases by the animals listed, but this rule is directed specifically at livestock and poultry. The department will not adopt additional language to include these animals at this time but recommends that schools prevent contact between all animals and eating surfaces.
COMMENT #97: A commenter asked how it was determined that the provision requiring hot water be provided at handwashing sinks would not have a fiscal impact.
RESPONSE #97: While many schools already have hot water provided at handwashing sinks, the department has moved this language to the pre-construction rule so it will apply only to new construction or additions.
COMMENT #98: A commenter asked how it was determined that the provision under ARM 37.111.812 requiring the topography of the site must permit good drainage of surface water away from the school building to eliminate areas of standing water and infiltration of surface water into the school building would not have a fiscal impact.
RESPONSE #98: This requirement is in the existing rule. The department added clarifying language that surface water must drain away from the building to prevent water infiltration into the building. The department has moved this provision to the pre-construction section of the rules to ensure that only new constructed schools or new construction additions must account for drainage away from the school.
COMMENT #99: A commenter asked if there will be training for staff on how to conduct playground inspections under ARM 37.111.812. The commenter asked how the department determined that playground inspections would not have any fiscal impact.
RESPONSE #99: A brief playground inspection checklist will be provided by the department to school districts. This playground inspection checklist does not require training to accurately complete. Any school staff may complete the playground inspection over the course of multiple days. The majority of schools typically have staff members or volunteers who supervise recess. These employees or volunteers can conduct a playground inspection with relative ease. Inspections should take less than one hour to complete and can be done during recess or any other time. Small schools with very limited staff likely have a very small playground to inspect. These inspections will take significantly less time to complete.
COMMENT #100: Multiple commenters suggested a language change to ARM 37.111.812(1) to replace false imperative language.
RESPONSE #100: The language has been revised to correct false imperative language.
COMMENT #101: A commenter suggested revising ARM 37.111.812(4) to simplify the intended meaning of the requirement.
RESPONSE #101: This language has been moved to the pre-construction rule.
COMMENT #102: A commenter asked how often testing of water temperature will be conducted. The commenter stated that even if this is required monthly, this is a huge task to verify and calibrate to comply. The commenter then asked if this is meant to be tested once and then anytime there may be an issue.
RESPONSE #102: The temperature parameters for hot water are an existing requirement in the current rules. There is no water temperature testing requirement in the rules. If a complaint is received, a school may need to test water temperature.
COMMENT #103: A commenter asked if the rules require school districts to hire or have a Certified Playground Safety Inspector (CPSI) on staff.
RESPONSE #103: School districts are not required to hire or maintain a CPSI on staff. Monthly playground inspections are simple and can be conducted in a short period of time by any number of staff members. A brief playground inspection checklist will be provided by the department.
COMMENT #104: A commenter asked if school districts are required under ARM 37.111.812 to document all repairs, including leveling fall protection material each time.
RESPONSE #104: Schools are required to document all repairs to playground equipment. Fall protection material is a necessary component of student safety, but it does not constitute playground equipment. Therefore, leveling fall protection material does not require documentation. The department has revised the rule for clarity.
COMMENT #105: A commenter indicated that if the local health authority is identified to complete the playground inspection review then training and funding is needed for the increased capacity. The commenter requested that a default clause be included to add the department if the local health authority does not have the capacity.
RESPONSE #105: Local health authorities are not required to complete playground inspections. As part of their inspections with a school, the local health authority should verify that the school has records of monthly internal playground inspections and repair records.
COMMENT #106: A commenter asked if the removal of ARM 37.111.812(4) and (5) apply to new construction.
RESPONSE #106: These sections were moved to the preconstruction rule and apply to new construction.
COMMENT #107: A commenter suggested adding the department to the language under ARM 37.111.812(9).
RESPONSE #107: Language has been added requiring playground inspections results be made available to the department or local health authority upon request.
COMMENT #108: A commenter suggested removing the word "Material" from "Material Safety Data Sheets" in ARM 37.111.812(4).
RESPONSE #108: The department has revised the rule accordingly.
COMMENT #109: Multiple commenters recommended that staff members be included in the requirement to isolate individuals with reportable communicable or infectious illness under ARM 37.111.825.
RESPONSE #109: The department agrees and has revised the rule accordingly.
COMMENT #110: A commenter requested that the department add language to ARM 37.111.825 clearly identifying who is responsible for reporting the disease when no health professional is present.
RESPONSE #110: The department has added clarifying language to the rule.
COMMENT #111: A commenter asked where schools go to get chronic disease management training under ARM 37.111.825 and who covers the cost.
RESPONSE #111: Schools may obtain chronic disease training from multiple places. The OPI features three online chronic disease trainings for school staff on their Teacher Learning Hub. Current trainings focus on Asthma, Diabetes, and Allergies and Anaphylaxis. These trainings are free to anyone who signs up for a free learning hub account.
In many counties and in many school districts, school nurses and local county public health nurses are capable of providing training to schools on common chronic conditions free of charge. These trainings can be done as stand-alone events or included as part of pupil instruction related (PIR) days. Schools may also be able to work creatively with healthcare providers in their community to bring training to their staff.
COMMENT #112: Several comments were received relating to the tobacco signage requirement under ARM 37.111.825. A commenter recommended updating language to reflect recent changes to tobacco laws and asks how signs will be provided to schools. A commenter stated tobacco signage is currently posted only at the entryway to each building and that the new signage requirement imposes significant fiscal costs due to additional signage cost and labor to install the signs. Several commenters suggested adding language to address vaping/e-cigarette usage.
RESPONSE #112: The rule has been revised to address the prohibition against e-cigarette usage. The existing rules already require that no smoking signs be posted in each hallway, entryway, gymnasium, lunchroom, and restroom, though not in each classroom. Metal signs are available free of charge from the Montana Tobacco Use Prevention Program. Schools can order as many signs as needed and the signs will be shipped to the school free of charge. Schools must go to the Montana Tobacco Use Prevention Program's online storefront to order signs at http://mtupp.allegrahelena.com/.
COMMENT #113: A commenter suggested revising ARM 37.111.825 to correct and update language to current convention such as by referring to children as students. The commenter also suggested changes to correct false imperative language.
RESPONSE #113: The department has revised the rule to reflect current convention and to correct false imperative language.
COMMENT #114: A commenter suggested changing child to individual in ARM 37.111.825(3)(a). The commenter also suggested adding the following language to (3)(b) of the rule: "if the individual is a student,…"
RESPONSE #114: The department agrees and has revised the rule accordingly.
COMMENT #115: A commenter requested that the report of "symptoms" to the local health officer be removed from ARM 37.111.825. The commenter explained that the request surrounds the commonality of signs and symptoms and believes that the rule language is not consistent with the reporting requirements in 37-2-201, MCA, where the report is required to be made by physicians or practitioners of the healing arts, not school personnel.
RESPONSE #115: The rule has been revised to address the potential for the over- reporting of common symptoms. Schools without healthcare personnel on staff will be asked to consult with a physician, other qualified medical professional, or the local health authority if they suspect symptoms of reportable communicable or infectious illnesses.
COMMENT #116: A commenter advocated for keeping scoliosis screening in the rules. The commenter provided a joint opinion from the American Academy of Orthopedic Surgeons, the Scoliosis Research Society, the Pediatric Orthopedic Society of North America, and the American Academy of Pediatrics based on a literature review that concluded there is a lack of evidence for or against screening and the benefits outweigh the harm, because scoliosis screening is inexpensive.
RESPONSE #116: Schools may continue to conduct scoliosis screenings, but the department will no longer recommend it because the best available evidence does not support continuation of the recommendation.
COMMENT #117: A commenter asked what the criteria are for mental health screenings under ARM 37.111.825 and if the department will provide guidelines.
RESPONSE #117: The department has not yet determined criteria for mental health screenings. As this is only recommended and not required, schools may determine the criteria they would like to use if they choose to conduct mental health screenings.
COMMENT #118: A commenter asked if a continuous towel system that supplies the user with a clean towel would be considered "common-use" as described in ARM 37.111.825(1).
RESPONSE #118: Common-use towels refer to non-disposable towels that are meant to be used more than once. A continuous towel system or paper towel dispenser would not be considered as common-use because separate individuals would not be using the same piece of paper towel.
COMMENT #119: Multiple commenters expressed support of the provisions requiring schools to test their water supply system for lead. The commenters agreed that lead is a serious threat to children's health and acknowledge that the rule will help to identify and remediate the worst cases of lead contamination in Montana schools.
RESPONSE #119: The department agrees and thanks the commenters for their support of the proposed rule.
COMMENT #120: A commenter expressed support for the provision requiring schools to test their water supplies for lead. The commenter is pleased that funding has been identified to assist schools with the cost of lead testing and is confident that if a school is found to need significant remediation, those funds will be found also.
RESPONSE #120: The department thanks the commenter for their support of the proposed rule.
COMMENT #121: A commenter is concerned that funding could become a barrier in the future if all schools are required to test their water supply for lead every three years with no exceptions. The commenter recommended longer times between testing under certain circumstances. The commenter would support more frequent lead testing if a school's water supply changed. The commenter also supports testing every three years in any school where lead levels in the water supply were found to be above 5µg/L.
RESPONSE #121: The rule has been revised to provide additional flexibility regarding routine monitoring frequency. Sampling frequency may be adjusted on a case-by-case basis depending on test results and inventory.
COMMENT #122: A commenter expressed uncertainty around the flushing and remediation requirements for water sources that reveal lead levels between 5µg/L and 15µg/L. The commenter would like to know if fixtures in this range are going to require follow-up testing to ensure that the flushing or other remediation successfully brought lead down to a safe level.
RESPONSE #122: The rule has been revised to include flushing as a temporary remediation option. Table 2 in ARM 37.111.832 outlines the sampling that is required to be performed after remediation.
COMMENT #123: A commenter suggested the department start a new rulemaking process under which it only moves forward with the lead water testing and abatement rule.
RESPONSE #123: The department disagrees with the suggestion. The department views all requirements in the proposed rules as priorities.
COMMENT #124: A commenter indicated that historically water testing has been a function of other departments, not schools or OPI. The commenter asked that testing be conducted not by school personnel, but by trained individuals with experience in water quality. The commenter stated the amount of training and technical assistance needed appears insurmountable.
RESPONSE #124: Historically OPI and schools have not been asked to consistently sample all human consumption fixtures (HCF) in the facility. However, there are schools that have worked with the DEQ to test their water supply as part of the public water supply system. Multiple school systems around the state also voluntarily test their water for lead. The process of collecting water samples is simple and does not require training. Sampling guidance documents will be provided to show the step-by-step procedure.
COMMENT #125: A commenter stated that they assume the lead testing timeline will be adjusted due to the extended public comment period.
RESPONSE #125: The department has adjusted the lead testing compliance date.
COMMENT #126: Multiple commenters stated that plumbing schematics and inventories may be difficult to create if records do not exist for many older and rural school buildings in Montana. The commenters asked how the department would advise schools to research the information and how the department determined there would be no fiscal impact for the time it will take to create a schematic and inventory.
RESPONSE #126: The department is not in a position to estimate the costs for each individual school of varying size and staff capability. Many schools may already have this information while others will need to review their system. Blueprints are not required, and the department will not require schools to use engineers or plumbers to draw their schematic and complete an inventory. The schematic can be a simple aerial photo or hand drawn sketch showing the fixtures and sample locations at the school. The DEQ will provide a template schools can use to create basic schematics to the best of their ability. This can be completed by facility managers, administrators, or lead teachers.
COMMENT #127: A commenter felt that the sampling and remediation schedule proposed in Table 1 of ARM 37.111.832 is unreasonable for Montana schools. The commenter cited the enforceable EPA maximum contaminant level of 15 ppb from the Lead and Copper Rule. According to the commenter there is no recommendation or directive backing the required follow-up action in bins 2 and 3 of Table 1. The commenter stated that the requirements are entirely arbitrary and imposing sampling and remediation actions on the part of the school will provide little benefit to students.
RESPONSE #127: Language has been removed requiring schools to remediate within a six-month time frame. Schools must not use HCFs that test high for lead until remediation and additional testing has occurred. The level of 5 ppb was selected as the action level based on the Practical Quantitation Limit (PQL) for lead. The proposed regulation is separate from the EPA Lead and Copper Rule. The current standard for lead in bottled water set by the Food and Drug Administration (FDA) is also 5 ppb.
Guidance and technical assistance on the various remediation options will be provided to schools by the DEQ. The department disagrees that sampling and remediating high levels of lead in the school water system will provide little benefit to students. The evidence of how lead impacts child development is clear and is addressed in the statement of reasonable necessity.
COMMENT #128: A commenter stated that drinking water is not the sole source of lead exposure in children and gave examples of other common sources of exposure. The commenter cited study results from the Journal of Public Health Management and Practice that examined blood lead exposure sources among Alaska children. The commenter said that Montana students spend just 23% of their week in school, or as low as 18.5% in districts with a 4-day school week, meaning that the large majority of lead exposure would happen outside of school.
RESPONSE #128: The department disagrees with the sentiment expressed by the commenter. The commenter is correct that drinking water is not the sole source of lead exposure in children. However, the department cannot neglect a potential significant source of lead in schools. Reducing lead in school drinking water systems is one way to reduce lead exposure to children.
COMMENT #129: A commenter expressed that local data does not show elevated blood lead levels are a problem of imminent public health importance, making extensive testing of potential lead sources an inefficient use of limited resources. The commenter recommended the department avoid reacting to national water quality stories and would like the department to use funding to help Montana health care providers establish baseline lead levels in Montana children.
RESPONSE #129: The department disagrees. Blood lead levels are not widely and frequently tested in Montana and therefore it is currently impossible to know how many children have been exposed to high levels of lead from various sources. The department cannot assume that because school-aged children are rarely tested for lead that they are not exposed to lead. By addressing a likely source of exposure to lead, we can help eliminate the risk of exposure in schools. Lead testing in schools is a priority for the EPA and federal funding is available to support testing.
COMMENT #130: A commenter suggested that the words "should," "shall," "will," and "must" in ARM 37.111.832(8)(a), (b), (d), and (9)(a) and (b) be updated to "must" to replace false imperative language.
RESPONSE #130: The department agrees and has revised the rule accordingly.
COMMENT #131: A commenter asked how school water supply systems that fall under the EPA's jurisdiction will be addressed. The commenter supports the proposed rule requirement and shared opinions on how the department may consider distributing funding, as well as the importance of reporting transparency and support for schools who do find elevated levels of lead.
RESPONSE #131: Schools in which the water supply system falls under the jurisdiction of the EPA will still be required to test their water supply systems for lead. School administrators will be responsible for working with the EPA to ensure compliance with this rule.
The DEQ will determine the best way to distribute federal EPA funding to support testing. The department and DEQ will continue to work together to identify other funding opportunities to help with on-going testing and remediation costs.
COMMENT #132: A commenter stated that the new requirement to test every HCF in each building would become very costly, unless a new funding source has been identified by the department. The commenter added that testing HCF in all 36 schools in the district could cost thousands of dollars.
RESPONSE #132: The department will work with the DEQ to determine the best way to distribute federal funding to support testing. The department and DEQ will continue to work together to identify other funding opportunities to help with on-going testing and remediation costs.
COMMENT #133: A commenter questioned the decision to sample all HCF and asked if the water is the concern or the fixtures are the concern. The commenter stated if the pH of the water is correctly regulated then the fixtures should not be a concern. The commenter suggested the following language to clarify what is being tested: "test the water that passes through the fixtures."
RESPONSE #133: Water quality at the schools is a concern. The chemistry of the water, along with the composition of the plumbing (piping, fixtures, and fittings), can affect the quality of the water served. pH is only one of many factors in determining whether water is corrosive. Water temperature and alkalinity can also contribute to water corrosivity. Lead may also be released during the physical disruption to lead containing materials; i.e., pipe/fixture repair/replacement. The preferred remedy is lead source removal (i.e., removal of the lead containing fixtures, fittings, or piping).
Corrosion control treatment alters water chemistry, but does not eliminate the lead containing fixtures, fittings, or piping. This treatment can be more expansive to install and maintain and it may fail. Corrosion control treatment would also change a school's classification from a "service connection" (not regulated as PWS) to a "Public Water Supply" that would be subject to all of the PWS rules and regulations.
Schools must test all drinking fountains and sinks used in food preparation. The rule has been revised so that schools must test all other potential HCF unless the school or school district submits a plan to the DEQ to test a representative sample of the HCF in their facilities. Proposed testing plans will be approved or denied by the DEQ.
COMMENT #134: A commenter suggested that schools must report samples to the department as well as the DEQ.
RESPONSE #134: The DEQ and the department will coordinate to review testing results and contact schools that need additional assistance.
COMMENT #135: A commenter asked what the rationale is for 3 days as the inactive period under the water lead testing rule.
RESPONSE #135: The potential for lead to leach into water can increase the longer water is in contact with plumbing fixtures. Water of acidic or corrosive nature that has sat motionless in the interior plumbing will leach out metals in as few as 6 hours. Unidirectional flushing and reservoir turnover can be used to encourage fluid movement, minimize residence time, and replace stagnant water. Flushing does not suppress the process of leaching, but the movement of fluid helps to prevent the accumulation of contaminants in a localized area.
COMMENT #136: A commenter suggested the department revise the language in ARM 37.111.832(8)(b) to the following: "The schematic and inventory shall be maintained by the school and shall record any repair, modification, or change in water source that may result in a change."
RESPONSE #136: The rule has been revised to include the proposed language.
COMMENT #137: A commenter suggested adding the following descriptive language to ARM 37.111.832(7): "a suitable faucet apparatus for filling individual cups shall be designed to prevent contact with the lip-contact surface of glasses or cups."
RESPONSE #137: The department has chosen not to include this additional language at this time as it may place additional fiscal costs on schools.
COMMENT #138: A commenter suggested adding the clarifying term "tight-fitting lids" to ARM 37.111.833(1)(a).
RESPONSE #138: The department does not believe it is necessary to require tight fitting garbage lids. This may be included as part of a quality integrated pest management program that schools are required to develop. These type of program details are to be determined by the schools and not the department.
COMMENT #139: A commenter suggested changing the word "sewage" to "wastewater" to align with modern public health terminology.
RESPONSE #139: The department agrees and has revised the rule.
COMMENT #140: A commenter suggested revising ARM 37.111.840 to read "dried to greater or equal to 130°F for 10 minutes…" in order to be consistent with existing public accommodation rules.
RESPONSE #140: The department agrees and has revised the rule.
COMMENT #141: A commenter asked who approves properly vented storage areas under ARM 37.111.841. The commenter also asked how the department determined there would be no fiscal impact to schools needing to add ventilation to their storage closets.
RESPONSE #141: The requirement for janitor rooms to be ventilated already exists under the current rules. It is not a new requirement under the proposed rules.
COMMENT #142: A commenter stated that the requirements of ARM 37.111.841(1)(a), (b), (f), (g), and (h) may limit a custodian's ability to provide their professional services in the best way necessary by limiting the tools necessary to clean.
RESPONSE #142: The department disagrees. The department does not believe that ensuring janitorial storage rooms are lockable will impede a custodian's ability to provide professional services or limit the tools necessary to clean.
The department also does not believe that using toilet bowl and urinal cleaning materials for that purpose alone and separately storing these materials will impede the work of custodians. Storing materials separately simply means that these cleaning supplies must not come in contact with other cleaning supplies meant for other purposes.
COMMENT #143: A commenter asked if "EOA" registration number in ARM 37.111.841(1)(m) is a typo and should be "EPA."
RESPONSE #143: The department has corrected this typographical error.
COMMENT #144: A commenter suggested adding the following descriptive language to ARM 37.111.841(1)(c): "after use, mops shall be placed in a position that allows them to air dry without soiling walls, equipment, or supplies."
RESPONSE #144: At this time, no additional language will be added to this subsection of the rule.
COMMENT #145: A commenter stated that the language in ARM 37.111.842 is nebulous and creates confusion with schools. The commenter recommends the following language: "Licensure as a food establishment is required."
RESPONSE #145: The language is established in a current rule and is not a new proposal. Under 50-50-202, MCA, a retail food establishment is exempt from the licensure requirement if it is operated by a political subdivision of the state and the political subdivision employs a full-time sanitarian. Such establishments are still required to comply with the retail food establishment statutes in Title 50, chapter 50, MCA, and the department rules adopted under the statutes.
COMMENT #146: A commenter holds the position that ARM 37.111.842 conflicts with 50-50-102, MCA requiring food establishments to be licensed by the department. The commenter recommended that (1) should be written to state that according to 50-50-102, MCA schools must obtain a health department food establishment license. The commenter also recommended that (2) be reinserted.
RESPONSE #146: Please see Response #145. The department removed (2) of the rule because it is unnecessary for the department to adopt and incorporate by reference its own rules.
COMMENT #147: A commenter expressed that, as the local health authority, they are overseeing inspections and the specifications for food services.
RESPONSE #147: The department will continue to support the work of local health authorities performing food services inspections in schools and other establishments.
COMMENT #148: A commenter asked who approves integrated pest management programs and if there will be sample plans available for schools to use. The commenter expressed that the amount of detail and steps required to mitigate for pests appears to put an undue burden on schools, creating a situation where they may not have the resources to efficiently and effectively manage pests.
RESPONSE #148: Integrated pest management (IPM) programs do not need to be approved by any authority outside of the school. The local health authority will check with the school when conducting inspections to ensure that the school has established and is implementing an IPM.
The department will provide example IPM programs to schools. Each school should tailor their IPM to their facility and situation. Many of the common steps identified in well-established IPM programs are already followed by schools.
COMMENT #149: A commenter pointed out that ARM 37.111.846(9)(c) references (9)(f) and the commenter cannot find (9)(f) within the proposed rules.
RESPONSE #149: The department has corrected this typographical error.
COMMENT #150: A commenter suggested that language be updated to replace false imperative language in ARM 37.111.846(5).
RESPONSE #150: The department has revised the rule to correct false imperative language.
COMMENT #151: A commenter recommended that the department change the language in ARM 37.111.846(9)(b) from "The department recommends that the print…" to "The department requires that the print…." The commenter stated that 26-point font is determined as readable font, so it must be required to provide health and safety.
RESPONSE #151: The rule has been revised to require at least 26-point font on pesticide application notices posted in the area where the pesticide is to be applied.
COMMENT #152: A commenter noted that it seems unnecessary and cumbersome to notify students, staff, and parents of pesticide use during summer months when school is not in session. The commenter suggested that a better method to identify and warn of areas where pesticide for weed mitigation has been applied would be to post signage at the site directing the public to contact the responsible party if any questions or concerns arise. The commenter also asked if a blanket warning that pesticide may be applied during the summer months would suffice as a warning.
RESPONSE #152: The department partially disagrees. The rule stated, "If pesticides are used outside the school term and the school is open or to be accessible by the public, the notification required must be prominently posted in a conspicuous location on the school premises at least 24 hours before the pesticide treatment is scheduled to begin."
If a school is not in session and not accessible to the public, no notification is required. If a school is not in session but is accessible to the public, signage must be posted. There is no provision that would require the school to notify students, staff, and parents of pesticide use beyond the signage near the area of use.
COMMENT #153: A commenter requested that the department include a definition of "pest" and asked if that includes bedbugs, lice, rodents, and pets.
RESPONSE #153: A definition of "pests" has been added to the definition section of the rules.
6. The department intends the following rules to be effective on the dates listed below:
New Rule I (37.111.826) Indoor Air Quality and New Rule II (37.111.827) Outdoor Air Quality are effective September 1, 2020.
New Rule III (37.111.813) Science, Industrial Arts, and Art Laboratory Safety is effective September 1, 2021.
All other rules adopted and amended are effective upon publication unless specifically stated otherwise within a rule.
/s/ Robert Lishman /s/ Sheila Hogan Robert Lishman Sheila Hogan, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State January 7, 2020.
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