By Andrew McIntyre

Law360 (October 1, 2020, 3:33 PM EDT ) Duke University's general counsel recently chatted with Law360 about the process of COVID-19 testing and the challenging athletics decisions the school has had to make amid the pandemic. 

Pamela Bernard, vice president and general counsel at Duke, discussed the unique position the university has found itself in given its medical system, and also noted that Duke decided not to allow fans to attend sports events even after the Atlantic Coast Conference gave the green light for schools to do so.

This article is the second in a four-part series of conversations with general counsel at colleges and universities about the issues they are facing as students start the semester in person or remotely. This interview has been edited for length and clarity.

Let's start by talking about testing. I read a report that as of early [September], Duke had done more than 17,000 tests. I'm sure that number has grown since. I'm wondering what were the various considerations regarding how to handle testing, and were you involved in those discussions?

I was. We have a team that is meeting every day. In fact, we have multiple teams that are meeting every single day. And my typical day starts out with a team meeting, which includes talking about infection rates locally, statewide, nationally, as compared with the day before. Discussion about trends, hospital infection rates, ICU rates, all those kind of things. And so, since March, we've been — this has been an everyday endeavor. And I guess what I would say about testing is that different than some universities, Duke is really blessed to have a first-class medical school and hospital system, which we tap for medical and health policy advice every day on the issue of testing. And so we have medical personnel that are involved in our daily conversations.

We've, as you know, done a lot of testing, and yes, that number has gone up. I think that number is something in the neighborhood of 22,000 plus [as of late September]. But we had put into effect before bringing the students back for fall mandatory gateway testing for all of our students that were going to be coming on campus. We do daily monitoring of symptoms, not just for students on campus, but for employees on campus, too. And we do constant surveillance testing to identify potential hotspots. And we do some of our testing through [Clinical Laboratory Improvement Amendments] labs and we do others through our own labs, such as the surveillance testing. We're very lucky we have a human vaccine institute here at Duke and we've converted that during this time to help us with this surveillance testing.

One thing to remember, I guess what I would say about testing … is the science of testing is evolving all the time. And so it's not just a question of what you're doing now but what's out there on the market. What might be available? Do you have a quicker test? Do you have a saliva test instead of an invasive test? So we really are leaning heavily on medical and health policy experts to help us understand the best way to do our testing. The best way to minimize spread of infection through masking and handwashing. Distancing. And really how to get people to actually do those things. So not every university has that asset. We feel very blessed.

So testing is one key issue that obviously you spend a lot of time thinking about, but I'm wondering in the weeks leading up to the start of the semester, what were some of the other major issues from your side of the table?

In terms of opening campus?

In terms of getting ready for the students to come.

Yeah, well one of them, which is directly related to testing — this wasn't something I did — but our student affairs vice president and that group, they leaned in a lot to communicate with students and their families before the students ever got here. Suggesting that they isolate for a couple of weeks before they even come. And interestingly, most of our students did. Because when we had our students tested at gateway testing when they walked through the doors … their infection rates were very low. So clearly they were listening and their families were listening. So that was something that I think was a major factor in starting out really this semester with a relatively low infection rate among our students. And that's very different than some campuses have experienced.

The other things we really looked at is, for example, residence hall capacity. That has been a key driver. We learned early on that single-room strategy was a key infection mitigation strategy. But we also came to understand that we needed to have a large number of rooms available as isolation and quarantine space. Because we told our students that if they do either contract COVID-19 or they're exposed to it, we want to place them in quarantine or isolation as the case might be, and care for them. And make sure that they get what they need rather than sending them back home into the community and to their families. So we had to have a lot of extra space on hand to do that.

The other thing that was very interesting for us, Andrew, was classroom space. It's interesting, because when you look at classroom space, you can't just count how many seats do you have for students. Many of our classrooms have fixed furniture. So you can't count that space, because it doesn't allow safe social distancing. So we had to have a lot of our normal classroom spaces counted out because they wouldn't have done for the type of infection control that we were putting in place. So another key factor … was also classroom space, to figure out, to the extent we're doing any face-to-face teaching, how we could make that happen and keep both the students' infection rate low and, of course, the professors that are teaching.

You've mentioned a couple times gateway testing. What do you mean by that? What does the gateway testing process look like?

So that is where every student that returned to campus had to be tested upon coming in. And that was a Herculean task, you can imagine. But that was not something that everyone did. And I think that was one of the key factors that helped us when our students came in. … And we also had a very quick turnaround on those tests. ... So students really had to just go to their room assignments for a day, and then we would have their test results. So that was a very helpful thing. And I know not all universities were able to either get those kinds of tests or, frankly, have the resources for them.

I'm wondering what sorts of state-specific issues — North Carolina issues — there are at play here? Are there specific North Carolina COVID rules, regulations, recommendations that apply to the university campus?

Yeah, yes there are. There have been both state and local closure orders. So we've had the state, the governor issue orders on closures that would affect some of our activities, for example athletic events. We've had our local health department and our local government issue orders that also would affect us. So every county has their own health department that can take action under state law. And so you have to really look at every county where your students might be coming from, and every county in which you might have facilities. For example, at our health system, we have clinics in lots of different counties.

And so we're constantly having to keep track of all of that too. And that [has changed] a lot. The governor, for example, Gov. [Roy] Cooper just issued a relaxation of the ability for athletic events to have fans — to have patrons come in and watch the games. Even though we could do that, Duke has made the decision not to do that, and keep its stands without fans because we feel like at a university … we have a higher density in our community, and we want to be able to do everything we can to avoid having that infection rate creep up.

I wanted to ask you about athletics, actually. Duke, as you and I both know, is well-known nationally for its athletics programs. And I'm curious, what sorts of discussions or roles you had when it came to decisions in the athletic department? What sorts of issues was the athletics department dealing with and what was your role there?

Again, my role was the same, being part of a team of administrators, a group of administrators that were discussing these issues every day, if not multiple times a day. I didn't lead up that team. But we had an individual who did, and who has done a fantastic job of really enhancing communication and getting ideas and information from people. And in athletics, I was happy to be part of that effort too, because I've done a lot of work in athletics and so I understand a little bit about how they work. But the athletic director is also on this team. And so we were able to understand what the challenges were in moving, first of all, in just allowing student athletes to come back to train. Forget about competition, but just coming back to training and condition. And so we put in special protocols for that activity based on the medical and public policy and health advice that we got.

And then we used that as a way to sort of, I hate to say this, but almost an incubator to see what happened. And took those learnings and applied them as we began to think about competition. We have done the same thing in our research enterprise, because when we reopened our research enterprise, that's to do scientific research or labs. We did that early on, because you can imagine the amount of experiments that needed to be done. Our scientists were very anxious to continue their work. Many scientists have put years into this type of work. And so that was one of the first things we did when we started reopening, was [work] in our laboratories. And that gave us a lot of learnings too, about what worked, what didn't, and we were able to apply that to other activities, including our athletic department.

Now, competition has been a very tricky one, as you know. But Duke was heavily involved in our conference discussions. And in fact, one of our Duke infectious disease specialists, Cam Wolfe, actually chaired the medical advisory group for the ACC conference. And so the conference and the universities worked together to try to develop best practices to first of all see if we could even think about competing. Back in the spring, I don't think anyone ever thought it could be done in a way that would make sense. And so taking these learnings that we had in the late spring with our labs, in the summer as people started populating campus and coming back with our student athletes and training and conditioning, all of these learnings were taken and applied to how we might envision having athletic competitions that could be as least risky as possible. You can never say safe, you can just stay as least risky as possible.

And so those protocols we've now developed, and those are continuing to be developed, and so far, they seem to be working. But I'll tell you, Andrew, you have to be ready to change on a dime in this environment. Because every day could change. And when it does, you have to be prepared to change your plans. And I think that's been the most challenging part of all this is just day-to-day, never knowing whether the next day you're going to have to scrap what you thought you were going to do and move to a different place.

Are you still working with the ACC to try to figure out what the athletics situation will look like going forward?

Well, we started our football season already. And the ACC is still working with the schools. I'm not working directly with the ACC, but our medical people are. And of course ... our president is. And the athletic director is. But yes, the ACC, we're still having a lot of conversations about that. And some ACC schools may decide that they will, for example, have fans. As of this point, Duke has not felt comfortable with that. And we've decided against that.

I'm wondering what the spring looks like at the moment. Of course, everything can change on a dime, you said, but is part of your work now trying to figure out the blueprint for the spring? … What does the blueprint look like right now and what sorts of issues are you dealing with at the moment?

Well, right now we are looking at spring. Again, right now, our view is that we're going to try to take what we've been doing this fall and what's been successful, and continue to do that in the spring. I think there is some reluctance to go too fast too soon. So we're probably erring on being conservative and still being careful about what is the density of our campus, making sure that we're … continuing to de-densify and be aware of the residence hall issue and the classroom space. So I think that right now, we still have a lot of work to do. ... We are planning for spring, but we are every single day thinking about the learnings of the last day to make sure we can apply those to whatever we do in the spring.

--Editing by Kelly Duncan.

This is the second in a four-part series of conversations with general counsel at colleges and universities as schools begin their fall semesters amid the COVID-19 pandemic. The first article was a discussion with California State University's general counsel and the next article will feature the top two in-house lawyers at the University of Maine.

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