Mask Mandates, Covid Testing, and Vaccine Clinics: Mass. Education Dept. Guidance for Schools

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On July 30, 2021 the Massachusetts school commissioner, Jeffrey C. Riley, released a memorandum entitled “DESE/DPH COVID-19 Guidance for Districts and Schools: Fall 2021.”  In the memorandum Commissioner Riley makes several recommendations for schools.  His recommendations include:

  1. mandating masks for all children in grades K to 6 as well as unvaccinated students in grades 7 to 12.
  2. Implementing diagnostic and screening tests for unvaccinated students and staff,
  3. Implementing contact tracing and quarantine protocols for unvaccinated students and staff, and
  4. Hosting on-site vaccination clinics during either summer orientation or the start of classes.

These recommendations, according to Riley, are made in light of recent updates to the Center for Disease Control’s (CDC) “Guidance for COVID-19 Prevention in K-12 Schools.”  Both Mr. Riley’s memorandum and the CDC guidance will be a topic of discussion for school committees throughout the state this month. 

What follows is a summary of the proposed policies as well as some ways parents can protect their kids from the unnecessary physical and emotional harm that may result from these policies.

Risk to Children

Both the education department and the CDC acknowledge that COVID-19 is not a significant threat to children.

In Mr. Riley’s memorandum he states

[E]ven for those students not yet vaccinated, the apparent risk of COVID-19 to children remains small.

This statement is followed by four citations to highly credible sources confirming that the virus is not a serious threat to kids.  (The sources cited were from the Massachusetts Department of Public Health, the CDC, and the New England Journal of Medicine.)

Likewise, the CDC acknowledges that children are less susceptible to COVID-19.

[M]ultiple studies have shown that transmission rates within school settings…are typically lower than—or similar to—community transmission levels.  See Page 4 of the CDC guidance.

At least one study by the CDC was summarized as follows:

Data from China suggests that pediatric coronavirus disease 2019 (COVID-19) cases might be less severe than cases in adults and that children (persons aged <18 years) might experience different symptoms than adults.

These scientific findings are blatantly obvious to anyone who has active and social children.   

If COVID-19 is not a serious threat to our children’s health, why would we subject them to the highly intrusive and disruptive recommendations of Commissioner Riley and the CDC?

Mask Mandate

The commissioner’s memorandum “strongly recommends that all students in kindergarten through grade 6 wear masks when indoors.”  In addition, the education department, “strongly recommends that unvaccinated staff in all grades, unvaccinated students in grade 7 and above, and unvaccinated visitors wear masks indoors.”

Challenges to Governor Baker’s mask mandate were unsuccessful in court.  For example, see Delaney v. Baker, US District Court Civil Action No. 20-11154-WGY. 

However, there are significant differences between the governor’s mask order case and the proposed school mask mandate.  1. The state of emergency which was the authoritative basis for the original mask mandate is over; and 2. The proposed school mandate is imposed on only unvaccinated children, even though the CDC acknowledges that vaccinated people can contract and spread the virus.

(According to the CDC guidance, “fully vaccinated people get infected [breakthrough infections], even with the Delta variant” and “preliminary evidence suggests that fully vaccinated people who are infected with the Delta variant can be infectious and can spread the virus to others.” See Page 5 of the CDC guidance.)

So a new legal challenge could legitimately be made against any school district that imposes the recommended mask requirement.

A less costly and more practical way to challenge such a mandate is simply to go to your next school committee meeting and tell the members that you don’t want masks imposed on your kids.  If you can’t make the next meeting, call or email each of the members and give them a piece of your mind.

If they don’t listen, vote them out.

COVID-19 Testing

More troubling than the mask mandate is the proposed testing procedures recommended by the education department and the CDC. 

Commissioner Riley recommends:

COVID-19 testing – Districts and schools are highly encouraged to maintain or establish a robust plan for COVID-19 testing in schools, including both diagnostic testing and screening (pooled) testing for students and staff.

Testing would be done using BinaxNOW, a swab inserted into the back of the child’s nose.  The CDC recommends that such testing be conducted weekly on at least 10% of unvaccinated students whenever the “community transmission” rate is at “moderate, substantial, or high levels.”  The CDC defines “moderate community transmission” as at least 10 COVID cases per 100,000 persons—in other words .001% of the general population.

So, in a town like mine, which has only 16,000 people, just 2 cases of COVID in the general population would trigger the burden of weekly testing for our students.

All parents must understand that they have the legal right to refuse the use of such testing on their children.  (See Felder v. Children’s Hospital Corp., 97 Mass. App. Ct. 620, as well as 243 Code Mass. Regs. § 2.07(26) and M.G.L. c. 208, § 31.)

Furthermore, a school cannot share a child’s records (including medical records) without a parent’s consent.  See 20 U.S. Code § 1232g Family Education and Privacy Rights.

Parents opposed to these measures, should write to their child’s school and superintendent and state in no uncertain terms that your child is not to be tested.

The CDC even acknowledges the parent’s rights to informed consent.  The last section of their guidance states:

Testing should be conducted with informed consent from the person being tested (if an adult) or the person’s parent or guardian (if a minor), consistent with applicable state laws related to consent. Informed consent requires disclosure, understanding, and free choice, and is necessary for teachers, staff (who are employees of a school) and students’ families, to act independently and make choices according to their values, goals, and preferences.

Additionally,

Consider distributing consent forms with the other paperwork for returning to school and making them easily accessible.

Finally, the CDC recommends that such testing should focus more on older students rather than the young.

The burden of testing is likely to be higher for younger children and therefore screening testing may be more feasible and acceptable for older children and adolescents.

Again, the vaccinated are excluded from these tests even though the CDC acknowledges that they can contract and spread COVID.

Contact Tracing and Quarantine Protocols

Commissioner Riley and the CDC both suggest implementing contact tracing and quarantine protocols.  The CDC proposes that those unvaccinated students who have come within a few feet of an infected person, a “close contact,” should be removed from school for 14 days regardless of negative test results.

The guidance states,

Close contacts who are not fully vaccinated should be referred for COVID-19 testing. Regardless of test result, they should quarantine at home for 14 days after exposure. 

Commissioner Riley prefers to implement a highly intrusive “test and stay” protocol. 

Under test and stay, asymptomatic close contacts will have the option to remain in school and be tested daily with BinaxNOW for at least 5 days.  Vaccinated staff and students are exempt from quarantine.

Forcing students to stay home after they test negative for COVID is unreasonable and contradictory to the existing contagious disease statute (M.G.L. c. 71, § 55) which states that a child exposed to an infectious disease must be readmitted to school upon the presentation of “a certificate from the board of health or its duly appointed agent that the danger of conveying such disease by such child has passed.”

Vaccine Clinics

Most alarming of all, is Commissioner Riley’s recommendation that schools institute on-site vaccine clinics.

We urge all schools…to host an on-site vaccination clinic during summer orientation events or when classes begin. A DPH-approved mobile vaccination provider, including clinic staff and vaccination administrators, will be provided free of charge.

There is not much detail about these mobile clinics in either Riley’s memo or the CDC guidance.  However, parents have the right to informed consent before their children can be treated with any vaccine.

If you object to exposing your child to the vaccine, it’s important that you let the school know immediately in writing.

If you have questions or need help, email me at justin@jrmccarthy.com

Massachusetts Schools and Vaccine Mandates

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The law regulating vaccination and immunization for Massachusetts’ students is found in M.G.L. c. 76, Section 15.

According to the law, no child shall be admitted to school unless the school is first provided with a physician’s certificate showing that the child has been immunized against the following viruses:

  1. diphtheria
  2. pertussis (whooping cough)
  3. tetanus
  4. measles
  5. poliomyelitis (“polio”)
  6. and “such other communicable diseases as may be specified from time to time by the department of public health.”

The law provides two exceptions.

First, a student may present the school with a certification from his or her physician stating that the student’s health could be endangered if he or she received a required vaccine. Such a certification must be submitted by the student each school year. The doctor in charge of the school system’s health program may contest the certification. If that happens, the matter is referred to the department of public health, whose decision is final.

Second, a student may object to being vaccinated on religious ground. According to the statute,

In the absence of an emergency or epidemic of disease declared by the department of public health, no child whose parent or guardian states in writing that vaccination or immunization conflicts with his sincere religious beliefs shall be required to present said physician’s certificate in order to be admitted to school.

A recent bill (Bill H.2411) has been presented to the state legislature seeking to remove the religious exemption from the statute, thus forcing the vaccine requirements on all residents regardless of their religious beliefs.

Legal Advice From Real Estate Agents

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Almost every real estate attorney has had his or her legal advice contradicted by a presumptuous real estate agent. Typically, the lawyer sees a potential problem with some technical aspect of the closing (a tax issue, a boundary-line encroachment, a title problem, etc.) and informs the client of the need to fix the matter before the closing proceeds. This sends some real estate agents into a panic as they see their commission check put into jeopardy. In responds, the real estate agent may downplay the problem and give his or her uninformed legal advice which usually goes against what the lawyer said.

Such actions violate both Massachusetts’ statutory law prohibiting the unauthorized practice of law as well as the Massachusetts’ professional standards for real estate agents and the ethics code for REALTORS.

According to M.G.L. c. 221, section 46A,

No individual, other than a member, in good standing, of the bar of this commonwealth shall practice law, or, by word, sign, letter, advertisement or otherwise, hold himself out as authorized, entitled, competent, qualified or able to practice law.

In addition, Article 13 of the Code of Ethics and Standards of Practice of the National Association of REALTORS expressly prohibits its members from giving legal advice:

REALTORS® shall not engage in activities that constitute the
unauthorized practice of law and shall recommend that legal
counsel be obtained when the interest of any party to the
transaction requires it.

Lastly, 254 CMR 3.00, the Professional Standards of Practice for real estate brokers and salesmen in Massachusetts states that

a broker or salesperson shall only assume those duties and responsibilities for which he/she has adequate preparation and for which competency has been acquired and maintained.

When (If Ever) Does a Mortgage Expire?

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The word “mortgage” derives from French and can be translated to mean “death pledge”: mort (death) and gage (pledge). Despite this ominous name, mortgages do have expiration dates either contained in their terms or imposed on them by statutory law.

The average residential mortgage has a term of 15 or 30 years. Typically, within the first page or two of the mortgage, you can find language such as:

Borrower has promised to pay this debt in regular periodic payments and to pay the debt in full not later than July 1, 2051.

The date of July 1, 2051 is the maturity date. Most mortgages are paid off and discharged at the registry of deeds before the maturity date. However, some mortgages go without being discharged for one reason or another. In these cases, the bank’s power to foreclose the mortgage (i.e., the “power of sale”) extinguishes five years after the maturity date pursuant to M.G.L. 260, Section 33. The statute states, in pertinent part, that

A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of…in the case of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date…

It should be noted that a mortgagee can extend the maturity date by recording an affidavit at the registry of deeds within that five year period between the maturity date and the date of expiration.

When a mortgage fails to state a maturity date, it will expire (or become “obsolete”) 35 years after the date it was recorded at the registry. Again, M.G.L. 260, Section 33 states:

A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of, in the case of a mortgage in which no term of the mortgage is stated, 35 years from the recording of the mortgage.

Once the mortgage is considered obsolete by the terms of the statute it shall be considered discharged and no further action is needed unless it is registered land. In that case an additional fee must be paid to Land Court in order for the discharge to become effective.

What is Mortgage Electronic Registration Systems Inc. (MERS)?

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The vast majority of mortgages in Massachusetts name MERS as the mortgagee (i.e., the entity that holds the mortgage) while designating the bank that loaned money to the homebuyer as simply “the lender.” Here is an except from a typical residential mortgage:

(C) “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.

“Lender” is PEOPLE’S UNITED BANK, NATIONAL ASSOCIATION
Lender is a banking institution organized and existing under the laws of the UNITED STATES.

This distinction between nominee and lender creates uncertainty amongst borrowers, lawyers, and even courts.

MERS is a registration system that allows banks and investors to assign mortgages among themselves while avoiding the cost and confusion of recording the assignments in local registries throughout the country.

This became especially valuable in the early 21st century when investors started buying and selling mortgage-backed securities which may be traded frequently.

According to the MERS Wikipedia page,

Real estate law and real estate transactions in the US are subject to state regulations and county level recordation requirements. That made it quite cumbersome for financial companies to develop a smooth operation of a market based on mortgages in the early 1980s. This is because every time a financial instrument containing mortgages is sold, various state laws may require that the sale of each such mortgage (or deed of trust) be recorded in the local county courts in order to preserve certain rights (e.g., the right to foreclose non-judicially), which triggers an obligation to pay corresponding recording fees. So, the financial industry, eager to trade in mortgage-backed securities, needed to find a way around these recordation requirements, and this is how the MERS system was born to replace public recordation with a private one.

The problem for lawyers and litigants is knowing how to treat MERS when it comes to legal documents and lawsuits.

When it comes to legal documents, MERS should be treated as the mortgagee. Thus, if a document such as a mortgage discharge or assignment is recorded at the registry of deeds, it should be executed by a MERS agent and not by the original lender. Likewise, the registry index should show MERS–and not the lender–as the mortgagee.

Anyone involved in litigation against their mortgage holder should name both their lender and MERS as a party in the case. I personally name MERS as a defendant while other lawyers name MERS simply as a “Party in Interest.” In my opinion, naming MERS as anything less than a defendant creates unneeded confusion and gives the opposing attorney an opportunity to challenge the “Party in Interest” designation.

For more discussion on MERS as it relates to real estate law refer to REBA Title Standard No. 72 and Massachusetts Land Court Guideline 42.

Lawyers and the Mortgage Lending Process

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When you get a mortgage to purchase a house in Massachusetts, your bank will require you to employ an attorney as the “settlement agent” or “escrow agent.”

Essentially, the lawyer reviews the title to the property you’re purchasing and certifies to the bank that there are no legal problems that will arise after the closing.

The lawyer also handles the loan money on behalf of the bank, writing checks to everyone involved in the closing process–the seller, the surveyor, the real estate agents, etc.

Before the closing, the lawyer prepares a commitment letter for the lender title insurance policy that you’re required to buy at the closing. He or she also relays the real estate tax information from the tax collector’s office to the bank and has a survey done of the land to ensure there are no boundary line problems.

Most banks allow borrowers to choose their own closing attorney. A small minority of banks require their customers to use a pre-selected lawyer.

If you have questions about real estate law, please contact me at justin@jrmccarthy.com

Forgiving Bad Deeds: When Are Errors in Deeds and Other Real Estate Documents No Longer a Problem?

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Many errors or omissions made in deeds and other real estate documents affecting land ownership are no longer a problem after the paperwork has been on record at the registry of deeds for at least ten years. This rule is set out in M.G.L. c. 184, Section 24 entitled “Defects, Irregularities or Omissions in Deeds; Curative Period.”

The statute lists the errors or omissions that are cured by this ten-year period. They include any irregularity or omission that fails to comply in any respect with any requirement of law relating:

to seals, corporate or individual,

to the validity of acknowledgment,

to certificate of acknowledgment,

witnesses,

attestation,

proof of execution, or time of execution,

to recitals of consideration, residence, address, or date,

to the authority of a person signing for a corporation who purports to be the president or treasurer or a principal officer of the corporation.

After the deed is on record for ten years, provided the validity of the document has not been disputed during that time, it becomes “effective for all purposes to the same extent as though the instrument and record thereof had originally not been subject to the defect, irregularity or omission.”

This rule applies only to documents recorded in the registry of deeds and it doesn’t apply to those registered with Land Court.

In addition to the ten-year curative statute, Real Estate Bar Association (REBA) Title Standard No. 21 on Scrivners’ Errors gives additional leeway for mistakes and omissions. It states,

A title is not defective by reason of:

(1) The omission or addition of a middle or first initial or name of an individual or minor
variation in the spelling of names;

(2) The change of the name of a person as a result of marriage, or judicial change of name (in the
latter case, reference should be made to the court and date of judgment);

(3) Minor variations from the correct name of a corporation, trust, limited
partnership, limited liability company, limited liability partnership or other legal
entity, such as the omission or addition of “The” or the interchange of the long form entity name
with the abbreviated form;

(4) Inconsistencies in, or lack of dates of, execution and acknowledgement;

(5) Minor errors in area or in distances of bounds or the omission of one bound or incorrect
compass points in a description, especially if the correct lot number and plan reference or
reference to title are included in the description;

or

(6) The omission of, or an erroneous reference to, either the date or the record
reference (but not both) to a mortgage in the case of an assignment, partial release, or
discharge of such mortgage.

For additional, in-depth discussion see the following cases:

Gillespie v. Rogers, 46 Mass. 610, 16 NE. 711, and Laney v. Snow. 180 Mass.
411, 62 NE. 735, as to omissions, additions and variations in names of
individuals;

Harrison v. Phillips Academy, 12 Mass. 456,

Ashkenazy v. R.M Bradley & Co., 328 Mass. 242, 103 NE.2d 251, and Dresel v. Jordan. 104 Mass. 407, as to inconsistencies in or lack of dates; and

Worthington v. Hyler. 4 Mass. 196, as to minor errors and omissions in
descriptions.

Emotional Support Animals and Massachusetts Housing Laws

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In recent years I’ve gotten several inquires from landlords and condominium associations regarding emotional support animals (ESA).

Although state and federal laws clearly prohibit discrimination against people with “service dogs”, the laws are less clear with emotional support animals. 

The Massachusetts’ discrimination law (M.G.L. c. 151B) states:

It shall be an unlawful practice…for…any organization of unit owners in a condominium or housing cooperative to refuse to rent or lease or sell or negotiate for sale or otherwise to deny to or withhold from any person or group of persons such accommodations because…such person is blind, or hearing impaired or has any other handicap.

The same the law requires condominiums and landlords to provide “reasonable accommodations” for such persons.

The mass.gov website quotes the Attorney General as saying,

M.G.L. c.151B may require that an owner modify his/her ‘no pets’ policy as a reasonable accommodation for a person with a disability who requires the use of a service or emotional support animal because of the person’s disability.[1]

I searched for the original source of the quote, but I could not find it.

Based on the foregoing, it seems that a credible claim of discrimination could be made against a landlord and condominium association that prohibited the ownership of emotional support animals at their property.

Anyone seeking permission to own such an animal should provide the property owner with an ESA Letter from a Licensed Mental Health Therapist.


[1] https://www.mass.gov/info-details/massachusetts-law-about-service-animals

“Piercing the Corporate Veil” in Massachusetts

Most business people know that operating through a corporation or limited liability company (LLC) offers valuable legal protection.  If a business is sued, only corporate assets can be used to satisfy a judgment and the owner’s personal property is usually beyond the plaintiff’s reach.

However, in certain circumstances, courts may disregard the legal protection afforded to a corporation or LLC and permit a plaintiff to directly sue the business owner.  Such an action is referred to as “piercing the corporate veil.”

To accomplish this in Massachusetts, at least three factors must be present. 

 Confusion and Ambiguity

First, the owner is using his business entity or entities in a manner that creates confusion or ambiguity. 

Corporate formalities also may be disregarded “when there is a confused intermingling of activity of two or more corporations engaged in a common enterprise with substantial disregard of the separate nature of the corporate entities, or serious ambiguity about the manner and capacity in which the various corporations and their respective representatives are acting. My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619

Wrongful Purpose

Second, the confusion and ambiguity are used for wrongful purposes such as fraud. According to the Massachusetts Appeals Court:

There is present in the cases which have looked through the corporate form an element of dubious manipulation and contrivance [and] finagling .” Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 736 (1991). See United States v. Bestfoods, supra at 62 (veil piercing appropriate when, “inter alia, the corporate form would otherwise be used to accomplish certain wrongful purposes, most notably fraud, on the shareholder’s behalf”); 1 W.M. Fletcher, Cyclopedia of Corporations, supra at § 43, at 296 (“although corporations are related, there can be no piercing of the corporate veil without a showing of improper conduct”). See Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 736 (1991). 

Absence of Business Structure

Finally, to pierce the corporate veil, a plaintiff must show that the corporation at issue failed to operate within a legitimate business structure. 

Ultimately, the decision to disregard settled expectations accompanying corporate form requires a determination that the parent corporation directed and controlled the subsidiary, and used it for an improper purpose, based on evaluative consideration of twelve factors:

“(1) common ownership; (2) pervasive control; (3) confused intermingling of business assets; (4) thin capitalization; (5) nonobservance of corporate formalities; (6) absence of corporate records; (7) no payment of dividends; (8) insolvency at the time of the litigated transaction; (9) siphoning away of corporation’s funds by dominant shareholder; (10) nonfunctioning of officers and directors; (11) use of the corporation for transactions of the dominant shareholders; and (12) use of the corporation in promoting fraud” (emphasis added). Attorney Gen. v M.C.K., Inc., supra at 555 n.19, citing Pepsi-Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 15-16 (1st Cir. 1985) (categorizing My Bread Baking Co. factors).

Need legal help? Email justin@jrmccarthy.com

Divorce and Real Estate in Massachusetts

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What happens to a couple’s real estate after a divorce is determined by their separation agreement.

Almost every divorce is settled through a “separation agreement” made by the parties. These agreements are typically prepared by the parties’ attorneys. However, Massachusetts Probate & Family Court will provide couples with a separation agreement template if they are handling the divorce without lawyers.

The separation agreement becomes binding after it is reviewed by the court and the presiding judge signs a judgment.

This judgment (referred to as a NISI judgment) has two dates: (1) the date the judge signs the document and (2) the date the judgment becomes absolute, i.e., final and enforceable.

If you are buying real estate that has been the subject matter of a divorce, it’s important that you review the terms of the separation agreement and make certain that they have been fully satisfied before taking title to the property.

It’s also essential to wait until the court’s judgment is “absolute” rather than taking title to the real estate immediately after the judge signs the document.

If you have questions about real estate law, please contact me at justin@jrmccarthy.com.