The Indiana Public Health Association (IPHA) is pushing back against Senate Bill 5, which the organization said in a news release “is a direct response to actions taken by local health departments during the COVID-19 pandemic.”
The bill, authored by Republican senators Chris Garten (Charlestown), Ron Alting (Lafayette) and Mark Messmer (Jasper) and co-authored by several others including all three Republican senators representing Grant County (Andy Zay (Huntington), Travis Holdman (Markle) and Jim Buck (Kokomo)), “provides that if a local order addresses an aspect of a declared emergency addressed by an executive order, the local order may be less stringent than the executive order to the extent permitted by the executive order,” according to the General Assembly website.
It also “provides that if a local order addresses an aspect of a declared emergency that is not addressed by an executive order or if a local order addresses an aspect of a declared emergency more stringently than an executive order, the local order may not take effect, or remain in effect, unless the local order is approved by the county legislative body (in the case of a county health department) or by an ordinance adopted by the city legislative body and approved by the mayor (in the case of a city health department).”
If SB5 were to pass, for example, a county whose health department decided to keep its mask mandate in effect now that the state has gone to a mask advisory would have to have that decision approved by county commissioners to go into effect.
The bill would also require that the appointment of the health officer be approved by the “county legislative body” and establishes an appeals process before a legislative body for enforcement actions taken by the local board of health in “response to declared state and local public health emergencies.”
Garten said in a press release that many local health departments have responded “admirably” to the challenges of the pandemic, but as unelected officials they should not be making final decisions that will affect the community.
“... The reality is that appointed health departments, rather than locally elected officials, are making decisions that impact Hoosier small businesses and their livelihood. Small businesses are the backbone of our economy, and through no fault of their own have faced the devastating consequences of the COVID-19 pandemic,” Garten said. “Senate Bill 5 allows our health departments to continue their critically important mission of keeping Hoosiers healthy and safe, while leaving the responsibility of enforcement in the hands of the men and women our communities elect.”
Grant County Health Officer Dr. William David Moore said while he is not familiar with all of the minute details of the bill, his general review led him to conclude it is an “overreaction” from the legislature stemming from issues only a few counties throughout the state have experienced during the pandemic. He said it appears SB5 gives a broad solution and lacks nuance to remedy any actual issues that have arisen with health department’s authority during the pandemic.
“Some people felt that the health officer and the health department went too far in trying to enforce some sort of consequence for not being compliant with mask wearing, primarily,” he said. “... If there’s a particular health department who’s doing a specific thing, go after that particular specific thing. And let’s have a focused and centered response to that particular department’s personality or issues and not to make these broad, sweeping changes that we don’t know the long term consequences down the line.”
Moore said he currently has a good working relationship with county commissioners, but the makeup of that board could change in the future, allowing the board to choose to unilaterally make health-related decisions without a health officer’s input if SB5 were to pass. He noted the health board is much better equipped to oversee the health officer and determine what actions the department should take since the board is staffed with members who have expertise in various health-related areas.
“It’s not that [commissioners] shouldn’t have any control, but that the deliberation should occur, there should be deliberations if you’re going to do that,” Moore said. “And the health officer should feel free to make medical judgment to make medical decisions and people who override that decision [the health board] are people who have been in a position to study and understand how the health officers come to these decisions.
During a virtual IPHA press conference last week, Tippecanoe County Health Department officer Dr. Jeremy Adler said SB 5 was “a dangerous experiment that Hoosiers would soon regret.”
Adler said this bill would shift local health enforcement appeals processing from courts to city and county boards and would prevent local health departments from implementing more restrictive orders.
Adler said this bill was written as a direct response to actions taken by local health departments, and if it were to become law, “Hoosiers should expect dangerous consequences on several fronts.”
“Elected officials would have full control over major public health decisions, most of whom lack the expertise needed to properly engage in unusually complex public health subjects and regulatory matters,” said Adler. “These elected officials would now be responsible for restaurants experiencing outbreaks of E. coli, norovirus and hepatitis A. They would also be responsible for Legionella in hospital settings, lead in our drinking water and deadly bacteria in our swimming pools.”
Ripley County Health Department officer Dr. David J. Welsh said “local public health officials take very seriously the responsibility to protect human health and the importance of balancing act between science, economic impact and personal freedoms.”
“I know this is a very emotionally charged issue. But it’s also a public health issue,” said Welsh. “SB 5 would require a massive expansion of government for most counties across Indiana and add unnecessary complication to what is already extremely difficult work. Important public health decisions, especially during a public health emergency, should be left to individuals with expertise in public health and medicine.”
Indiana University Richard M. Fairbanks School of Public Health founding dean and professor Dr. Paul K. Harverson said several local elected official have expressed concern about this “significant shift in responsibility” which creates “a larger, more complex government.”
“The COVID-19 pandemic proved the current system worked,” said Harverson.
Harverson said the data showed Indiana has one of the most neglected public health systems in the country, with the Hoosier state ranked 48th out of 50 in the states’ per capita investment in public health.
“Hoosiers live shorter lives and spend more on medical care than other states,” said Harverson.
IPHA President Susan Jo Thomas said the organization has been “aggressively engaged with legislators across the state, explaining the bill’s countless dangers to public health in Indiana.”
Thomas said they were “reaching out to Gov. Eric Holcomb to request he veto the legislation if it reaches his desk.”
“We’re asking all Hoosiers to do anything within their power to convince legislative leaders and Gov. Holcomb to stop SB 5 from becoming law,” said Thomas.
For their part, local legislators have pushed back against this criticism.
“I trust our county commissioners to continue working with local health officials – just like they have been doing over the past year to help manage through the pandemic,” said Rep. Craig Snow, R-Warsaw, who represents part of Sweetser and Converse. “I’ve heard from numerous constituents who want to ensure their elected officials have input on orders from local public health departments as well as the opportunity to appeal orders that negatively affect them or their business. It is entirely reasonable that the people and their elected officials are at least given the opportunity to be a part of this process, and Senate Bill 5 simply affords them that opportunity.”
Sen. Andy Zay, R-Huntington, who represents Converse, Van Buren and parts of Sweetser and Marion, said “the intent of the bill is to bring local health decisions in front of an elected board.”
“We’ve had challenges all across the state where we’ve had health officials making these decisions without any room for appeal. Now this creates an appellate process back to an elected board which would be the commissioners and council,” said Zay, during a phone interview last week. “It formalizes that process and gets the public a seat at the table. What’s wrong with having the people’s voice be heard? What’s wrong with having a seat at the table?”
Zay said health department officials “have been elevated to a very high position of authority where they’re able to shut businesses down, basically determine fines and have blanket orders over communities with very little check and balance.”
“So, this just kind of creates what I think as a democratic philosophy of allowing another check and balance on the democratic process,” said Zay. “It’s just the purity in trying to have the checks and balances of the three branches of government in play. When you go through this, I think some of these situations have been magnified and that’s what we’re trying to rectify legislatively both at a local and at a state level.”
Zay said there was “tons of support for it in the legislative process” and he believed it would get to the governor’s desk.
“I’m surprised a little bit that it’s getting this much attention,” said Zay.
Zay said if it received pushback from the Indiana Department of Health and State Health Commissioner Dr. Kristina Box, “I expect it will be vetoed and it’ll give us another veto to override.”
In response to Zay’s concerns, Adler said it was not their intention to keep the public from having a say or from appealing decisions of local health departments.
“We’re more concerned about the process for appeals,” said Adler. “It would be transferred from courts to the local legislative body.”
Adler said the stay of enforcement granted through this bill would allow an entity to continue whatever they’re doing, “potentially endangering the health of the public while the appeals process is underway.”
“The public does have a right to have a say,” said Adler. “We’re not saying they shouldn’t have that right. We want that process to be done the right way.”
Harverson said he “would ask the question in return: Show us what’s really broken.”
“The way in which Indiana public health operates is exactly consistent with the way it’s done across the country,” said Harverson.
Harverson said the entire state does not suffer uniformly from disease outbreaks.
“To essentially say from the very beginning that unless the entire state is in a severe situation no one else should be,” said Harverson, “I think the public is being shut out from good public health practice by imposing mechanisms that will not allow good science to drive our public health decision making.”
On Tuesday, Holcomb’s press secretary Rachel Hoffmeyer said only that the governor would review the bill. SB 5 was passed by the House with amendments the Senate dismissed, so both chambers have designated conferees to work out a final bill in conference, according to the General Assembly website.