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Health Officials Didn’t Need County Commissioners’ Signoff To Mandate Masks In School
The Ottawa County health department’s now-defunct mask mandates in schools did not require the county board of commissioners’ approval, the Michigan Court of Appeals ruled.
The three-judge panel acknowledged the parents’ argument that the state’s Public Health Code, requires a board of commissioners approve or disapprove a regulation adopted by a local health department.
However, “there is no language indicating that the same approval process applies to an order issued by a local health officer,” reads the published opinion from Judges Jane Markey, Elizabeth Gleicher and Michelle Rick.
The plaintiffs, a half-dozen parents led by Patrick Flynn, argued that a “regulation” includes an “order,” but the appellate panel held the state health code refers to the two terms separately, not interchangeably.
The panel also noted that the Public Health Code gives health officers authorization to issue emergency orders in response to an epidemic.
Although the issue is moot because the Ottawa County health department’s mask order expired in January, the appeals panel said they addressed the issue because it has “public significance,” and emergency orders are likely to recur – although not likely related to COVID-19 – without judicial review.
The county’s health officer’s August 2021 emergency order required children from pre-kindergarten through grade six to wear a facial covering while in an “educational institution” or “educational setting.”
A revised order called for the mandate to expire 60 days after the COVID-19 vaccine was authorized or when the community transmission was categorized as “moderate” by the Centers for Disease Control for at least 14 consecutive days.
The plaintiffs, who have children in the targeted grades, filed suit in Ottawa County Circuit Court claiming the order was improper because it hadn’t been approved by the county Board of Commissioners.
The trial court dismissed their lawsuit, holding the emergency order did not need board approval because it was an order – not a promulgated regulation, which requires board approval.
Winter COVID Surge Beginning In Nursing Homes
A significant winter surge of COVID-19 appears to be gaining a foothold in Michigan nursing homes and across the country, according to AARP’s Nursing Home COVID-19 dashboard.
Epidemiologic information provided by the Michigan Department of Health and Human Services also shows that COVID metrics are starting to increase in Michigan as are other respiratory illnesses, such as influenza.
DHHS’ latest statistics show that as of Dec. 8, 32% of Michigan counties are at medium or high COVID-19 community levels, with Dickinson and Menominee in the Upper Peninsula at “high” community level. COVID hospital admissions and pediatric COVID+ census showed an increase as of Dec. 13, according to DHHS statistics.
“We’ve seen a slow but steady increase in nursing home residents with a COVID-19 diagnosis dating back to spring,” DHHS spokesperson Lynn Sutfin said. “The various metrics we monitor wouldn’t suggest that we’re experiencing any major increase at this point.
“However, we are seeing many respiratory illnesses circulating in the community and a fairly early and severe cold and flu season, too, which should be taken into account when understanding the strain all this is placing on vulnerable populations and this network of health care centers,” she added.
Paula D. Cunningham, state director of AARP, which serves more than 1.2 million members age 50 and older in Michigan, stressed the importance of vaccinations for nursing home residents and staff as a way to stunt the increase.
“The bivalent booster is needed for full protection. Increased vaccination rates will help us mitigate this surge as we head deeper into the winter,” she added.
In Michigan, 40.1% of residents and 14.1% of staff were “up to date” on their vaccinations, according to AARP’s statistics.
In most states, fewer than one-third of staff are “up to date” on vaccinations with California, Colorado, Hawaii, Massachusetts, New Jersey, New Mexico and the District of Columbia reporting staff “up to date” vaccination rates above one third.
DHHS’ COVID numbers, as of Dec. 13, show that 55,795 resident and 65,373 staff cases have been reported in skilled nursing, home for the aged and adult foster care facilities. The number of resident deaths is 7,133 and 107 staff.
DHHS will not update its data again until Jan. 4 due to the Christmas and New Year holidays.
The rate of resident cases nationwide is up 63%, and the rate of staff cases is up 70% in the week ending Dec. 4, compared to two weeks earlier, according to the Centers for Disease Control and Prevention COVID Data Tracker.
These numbers are the highest since early February, during last winter’s Omicron wave.
In Michigan, 40.1% of nursing home residents are up to date on vaccinations, according to AARP’s COVID dashboard.
Repairing Relationships A Top Priority For Public Health Association
The Michigan Association of Local Public Health said members will continue to evaluate the future of COVID-19 and attempt to repair relationships at a local level after public distrust and politicalization hit a peak during the pandemic.
During a Tuesday morning year-end press conference, Executive Director Norm Hess said the Association is aware of the tension in local communities that started during the pandemic, and is looking forward to addressing and rebuilding relationships in 2022.
“It was very difficult for local health officers to have to say to restaurants; ‘You need to close to indoor dining,’” he said. “Schools, school boards and school administrators just had a horrible time when they were trying to focus on education. They already had a very busy plate, and now it’s difficult for the health departments to say you have to follow these mitigation measures.”
Discussions between schools and local health departments were very regular at that time, but “I think that in some cases there was just inevitable strain between local governments and the very hard choices that health officers had to make,” Hess said.
As for parents, masking requirements and vaccine recommendations led to distrust in some cases, in part “because of the politicization, because of the disinformation,” he said.
“I would say that there is a decrease in the trust among public health,” Hess said. “Just like any other government agency in the last few years, I think that it’s a common thing that folks have had less trust in the government now than they did a few years ago.”
Hess said that has in turn led to a decrease in childhood vaccinations and an increase of individuals requesting waivers.
It’s important to address and educate individuals on what local health officers do, he said, “and the fact that putting a mask on your child to send them to school is not the reason that public health was invented. Nor is it the major function that we provide.”
“Not saying that any of those relationships are in shambles, but we just want to make sure that we are cultivating those relationships and making sure that they’re on solid ground as we go forward,” he said.
In some ways, the rebuild will come naturally as public health officials are able to come out of crisis mode and focus more on other types of programs, Hess said.
But he added that touching base and communicating are also keys to rebuilding public trust and working through the politicization of public health.
The association is conducting a comprehensive after-action review on the pandemic response, that includes talking to emergency preparedness coordinators and public health officers, along with schools, businesses and health and hospital associations to learn how their role in the pandemic was made easier or more complicated.
Hess said the report will be completed early next spring.
Hess said it’s too soon to tell if COVID-19 will soon become a regular seasonal virus, but as the pandemic continues to become more manageable, he said the association plans to educate more on what public health means.
“There are still a lot of people who do not realize that public health has any role in clean water quality or restaurant inspections, and for maternal child health, making sure that mothers and babies have the care that they need,” he said. “Folks can kind of identify immunizations or infectious disease as something that public health is involved in, but it’s so much broader than that.”
Public Health Code Will Be Addressed in 2023
Another look at the state’s public health code will be an issue taken up in 2023 if Norm Hess, the executive director of the Michigan Association of Local Public Health, has anything to say about it.
During the association’s year end round table, Hess said the association anticipates Democratic committee chairs in 2023 will be interested in advancing public health policy efforts.
At the top of the association’s list is an overview of the public health code, Hess said.
“Some of the powers and duties in the past session had come under scrutiny and there were efforts to change those or to limit those,” he said.
Hess was referencing a nearly 30-bill package championed by Rep. Julie Alexander (R-Hanover) that would require state departments to notify the legislature of a state of emergency, limit emergency declaration powers and set a 28-day limit on emergency declarations.
The association is looking less at making major changes like in Alexander’s package, and more to cleaning up confusing language in the long document.
“When we see efforts kind of bubbling up from various legislatures to change bits and pieces of it, it might be a good time to kind of look at the code altogether and see how well it meets our needs,” Hess said. “I don’t necessarily have huge problems or issues that I would like to push forward, but if other people are going to be talking about it, we want to make sure that our voice is heard in those conversations.”
Hess said the association’s goal is to make sure changes don’t, either purposely or inadvertently, cause an extra burden on departments.
That includes additional duties and regulatory authority without additional funding, he said.
“If they’re going to rephrase anything in the food code or any of these codes, we want to make sure that it clearly spells out both the responsibility and how public health will be supported.”
Hess said the food code, which applies primarily to the Department of Agriculture, also affects local health departments through restaurant inspections and will likely be another thing looked at by the legislature in 2023.
He also expects conversations about a statewide sanitary code in Michigan, which will likely be led by the Department of Health and Human Services (DHHS).
“Michigan is, to my knowledge, the only state that doesn’t have one, which is not to say that there is no regulation or enforcement there,” he said, “but it’s left to the local community, usually at the county level, to pass laws and ordinances around sanitary wastewater.”
Hess said there have been steps to improve sanitation across the state, including a $35 million appropriation to establish a low-interest loan fund for home septic system renovations.
Hess said of the 1.3 million households with a home septic system, many are in danger of failing, but that’s not always apparent until a major incident. The systems are expensive to replace, and many people don’t have the savings available to prevent a leak or other problem.
“We are encouraged that the money will be set aside,” he said, adding that the program is still being designed.