A bill to define terms in state code that further weakens the autonomy of local health departments was passed by the West Virginia Senate on Wednesday and will be taken up for a second reading by the House on Friday.
Senate Bill 3026 was introduced by request of Gov. Jim Justice, and while it adds definitions missing from previously passed Legislation (Senate Bill 12, passed during the 2021 regular session) it also closes “loopholes” some say could allow health officers or boards to abuse their power.
No clear or specific examples of health officers doing so without rectifying the issue were provided by legislators, counsel or those testifying during committee discussions on the bill Wednesday.
Senate Bill 12, which went into effect in June, gave elected officials veto power over health department rules and decisions. Under the law, any rule approved and implemented by a health board and health officer must be acted on by the appropriate elected officials within 30 days of passage, or it would not go into effect.
Emergency rules issued can go into effect without action, but will end unless they are approved within 30 days of implementation.
Any rule implemented before March 4, 2021 is not subject to the action from the appointing agency, unless a health board moves to amend it.
Tom Susman, president of TSG Consulting and lobbyist with the Local Health Department Association of West Virginia, said the main goal of SB 3026 is to add key definitions to these sections of code to prevent future confusion.
“There were not a lot of definitions in [SB 12],” Susman said. “If we don’t advance this portion of [SB 3026] with the definitions, I believe we’ll have more problems down the road.”
The new definitions clearly differentiate between health officer and health board “rules,” “orders” and “guidance.” They also lay out the responsibilities afforded to health officers, health boards, health departments and “appointing authorities,” which is the agency — usually a county commission or city council — responsible for appointing health officers and members of a health board.
A “rule” is a policy passed by a board of health that would apply to entire populations of people — like an indoor mask mandate or a smoking ban. An “order” is a specific policy for a single person or “discrete” group of people with the intent of stopping a potential public health threat — like a quarantine order, if someone tests positive for COVID-19, or temporarily shutting down a single restaurant for health code violations. “Guidance” is advice given by health officers to promote public health and safety.
Dr. Sherri Young, interim health officer at the Kanawha-Charleston Health Department, told members of the Senate Judiciary Committee that health rules are rare, and they aren’t issued lightly.
There are, at most, a few a year. Young said COVID-19 changed that, as guidance and rules at the state and local levels change so quickly, but, on average, rules are reserved for more serious and thoroughly discussed topics.
The version of the bill initially proposed by Justice included language that would have given county school boards the same authority as appointing agencies to vote down or approve any public health rule affecting public schools.
That portion of the bill was removed by lawmakers through an amendment in the Senate Judiciary on Tuesday. Sen. Ron Stollings, D-Boone, said that was the best thing that could be done for the bill.
“I was against Senate Bill 12 for many reasons. This [SB 3026] doesn’t address many of those reasons, but what was sent in here from Judiciary [without the education portion] is as good a job that could be done for this pig,” Stollings said. “Senate Bill 12 is a pig, and it’s hard to put lipstick on that pig. But, to the degree possible, [Judiciary] did that.”
The bill also includes language previously omitted in SB 12, including adding “void” to describe what happens to any rule that an appointing agency does not act on in 30 days. In the bill passed last session, while it was assumed the interpretation meant such a rule would not go into effect, the language was not clear.
Susman said there was no specific reason why the more recent bill used “void,” other than drafters wanting “something to happen” after the 30 day period.
“There was a lot of discussion on what happens after the 30 days, and this adds clarity that something has to happen in 30 days. We believe what that action is, is up to you, to the Legislature,” Susman told lawmakers. “We didn’t advocate for this as an up or down, we just like that there is clarity.”
Sen. Tom Takubo, R-Kanawha, proposed an amendment to the bill Tuesday at the Senate Finance Committee that would have reversed the language and made any rule from a health board go into effect if not acted on.
“I think this way would add more transparency,” Takubo, who is a physician, said. “If a rule is not sustained, I want to know why. Why did the [county] commission shut it down?”
The amendment failed. Sen. Mike Maroney, R-Marshall, who is also a physician and who was lead sponsor of SB 12 during regular session, voted against the amendment because of “accountability.”
“The intent of SB 12 was accountability. If there was a rule that was an unpopular rule for the people, for the elected body, there was a process to disapprove them,” Maroney said. “The primary intent was, if you want to be a cowboy with a little bit of overreach and do some things that a majority of people don’t like, there’s accountability. I think this amendment gets rid of that accountability.”
Stollings’ largest concern about the bill isn’t accountability. He argued that health department officials are held accountable already by being appointed by and under the purvey of county commissions and municipalities.
“The board of health is appointed by the county commission. That’s certainly an aspect of accountability,” he said.
Public health decisions necessary to keep communities safe are often unpopular, he continued, and they shouldn’t be political.
“[County commissions] put the onus on the board[s] of health because they don’t want to necessarily make these health decisions themselves,” he said.
Takubo’s amendment, Stollings said, would have put a layer of separation between appointing agencies and health rules that would mean necessary but potentially unpopular public health policies would not necessarily be subject to politics.
Sen. Mike Romano, D-Harrison, said that was exactly why health boards are designed the way they are, with members appointed by elected officials. He served on the Harrison County Commission as the county was looking to ban smoking inside county businesses.
“A lot of groups hated the smoking ban. The pressure, politically, was enormous. I was thankful the health department made that decision — it was taken out of the politicians’ hands,” Romano said. “Now we’re taking that power away. I just see a little Pandora’s Box getting opened here that we may not intend.”
Complicating this more, Romano said, is how rules apply for combined health departments, which operate across different counties or through counties and municipalities.
Per the bill, any health rules must be voted on by both appointing agencies for the health board. At the Kanawha-Charleston Health Department, for example, the County Commission and the City Council would vote on rules, because both panels appoint board members.
If one group approves the rule and another disapproves, the rule would be in effect only where it was approved. Romano said he could see the potential for a “patchwork network” of public health policies and rules. And while there are obstacles and laws dictating how to start a health authority, he said he worries about localities trying to do so to stop a rule they don’t like
“Aren’t we setting up an opportunity here to create more conflict between the local governments, between the county and the city?” Romano asked.
“I think that possibility could exist, yes,” Susman responded.