Lawmakers weigh whether to restrict local health directors’ authority over public health measures

Supporters say measure provides accountability; opponents say it could delay critical decisions

By: - February 15, 2023 8:42 pm
Kathleen Kauth introduces a bill before a hearing

State Sen. Kathleen Kauth of Omaha introduces a bill to change the role of public health directors on Wednesday, Feb. 15, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

LINCOLN — COVID-19 placed an immense strain on hospitals and the medical field with thousands of cases and deaths in the nearly three years of the pandemic in Nebraska.

Public health directors as well as state and local governments issued directed health measures to mitigate the spread of the coronavirus, action that helped “save” local hospitals according to one registered nurse in Lincoln.

“When DHMs [directed health measures] were announced, there would be a collective sigh of relief amongst bedside clinicians, myself included,” nurse Julia Keown told the Health and Human Services Committee on Wednesday. “We would actually cheer because we knew it was going to work, and it did.”

Keown explained that the measures led to fewer patients dying from COVID-19 and fewer times health care professionals had to tell family over Zoom that their loved ones had died.

One legislative proposal seeks to change who can issue these measures, taking the authority away from public health directors and changing their roles to one of advisement.

Legislative Bill 421, proposed by State Sen. Kathleen Kauth of Omaha, would require county boards or city councils to vote to adopt directed health measures, alongside state officials’ approval.

“It maintains the importance of the education and experience brought by public health directors but redirects the responsibility of restricting liberties,” Kauth said. “This should also serve to redirect the ire of the public from the public health director to the elected officials where it belongs.”

Keown was one of five medical professionals who testified against the legislative proposal Wednesday. Two private citizens testified in support of the bill.

‘Maintain our rights’

Kauth said her bill is a direct response to actions taken during the pandemic that she said restricted individual freedoms. She said this included mask mandates and restrictions on public gatherings.

“It is critically important, especially in what may be an emergency, to maintain our rights,” Kauth said. “Elections have consequences, and the responsibility for decisions regarding citizen freedoms must live with those elected officials.”

The bill mirrors backlash in Lincoln and Omaha over health measures that led to a failed recall campaign against the mayor and city council members in Lincoln and lawsuits against the health director in Omaha for issuing a mask mandate without the city council’s approval.

Then-Attorney General Doug Peterson dropped his lawsuit after the Omaha City Council approved an ordinance allowing the council to veto public health measures.

Dr. James Lawler testifies
Dr. James Lawler testifies against a bill to restrict the role of public health directors on Wednesday, Feb. 15, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

Dr. James Lawler, who is a professor in the division of infectious diseases at the University of Nebraska Medical Center, said the bill would make Nebraska less safe because it could delay health decisions.

In all of his experiences, Lawler said, critical and effective public health responses rely on speed, technical expertise and professional courage.

“LB 421 would undermine all of these in Nebraska,” Lawler said, adding that speed is the most important principle.

Day-to-day operations

The health departments in Douglas and Lancaster Counties issue about 120 work restrictions and isolation or quarantine orders every year, Lawler explained, excluding COVID-19. 

This includes action on diseases or pathogens such as hepatitis, salmonella, norovirus or tuberculosis, which all would need to be approved by elected officials.

“Most of the time, these orders are executed quietly. The emergency is contained and we never hear about it,” Lawler said. “But I, for one, am certainly glad these unsung heroes are working tirelessly behind the scenes every day.”

This means any directed health measure would require county or city as well as state approval.

Dr. Jim Nora, an infectious disease physician in Lincoln, testified against the bill and said medical professionals also want to uphold liberties and values. He said it should never be the intent of health policies to be arbitrary or discriminatory.

Jon Cannon, executive director of the Nebraska Association of County Officials, also testified in opposition. 

He said that gathering a quorum of city council members or county board members could be difficult, in addition to needing to abide by the open meetings act.

‘Arbitrary, wide-sweeping’ overreach

David Splonskowski testifies
David Splonskowski of Omaha testifies in favor of a bill to restrict the role of public health directors on Wednesday, Feb. 15, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

David Splonskowski of Omaha testified in support of Kauth’s bill because he said his family was hurt in the spring of 2020, mainly because of restrictions placed on church gatherings.

This placed an “undue burden” on his worship, he said, but these concerns fell on “deaf ears” when he contacted his county health director.

“It doesn’t necessarily prevent poor decisions being made,” Splonskowski said of the bill. “But at least it does allow residents to petition their local elected officials regarding the limitation of certain health directives.”

Stacey Skold of Malcolm, who has a Ph.D. in human sciences, said unelected officials ordered “arbitrary, wide-sweeping” mandates over the past three years that have eroded democracy.

Passing Kauth’s bill would close the loophole in medical directives, Skold said, arguing the bill needs additional language to prohibit injections as part of health measures. 

Ultimately, Skold said the Legislature should also develop a medical bill of rights.

‘Very scary time’

State Sen. Lynne Walz of Fremont, a committee member, expressed concern over how the bill would have affected her community during significant flooding in 2019.

Fremont became an island, Walz said, and if the health director’s actions involving  contaminated water quality had required additional approval, she questioned how that would have worked.

“It was a very, very scary time for the members of our community,” Walz said.

State Sen. Brian Hardin of Gering, committee vice chair, said Kauth’s bill would act as a check and balance on health directors. He pushed back against opponents’ testimony throughout the hearing. State Sen. Ben Hansen of Blair, committee chair, said the bill seemed reasonable due to the unprecedented action taken in response to COVID-19.

Dr. Echo Koehler, testifying in opposition for the Nebraska Nurses Association, said the bill would add “bureaucratic red tape” and undermine public health.

State Sen. Machaela Cavanaugh of Omaha, another committee member, repeatedly thanked medical professionals for their time in testifying and said openly she would not vote for the bill.

“You can thank me by not passing this bill,” Keown, the registered nurse, told Cavanaugh.

The committee took no immediate action on the legislation.

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Zach Wendling
Zach Wendling

Zach rejoins the Nebraska Examiner after studying abroad in Antigua, Guatemala, following a yearlong Examiner internship. His coverage focus areas have included politics and government, health and well-being and higher education.