Lawmakers OK bill to allow local officials to overrule county health departments

Locally elected officials could overrule orders issued by a city or county health department during a public health emergency under a much-debated bill approved Wednesday night by the Indiana House and Senate.

With strong support from Republican lawmakers, Senate Bill 5 was characterized by them as a way to inject a system of “checks and balances” into the process of imposing restrictions on citizens and businesses during emergencies. But Democratic lawmakers criticized the effort for creating a lengthy and onerous process that weakens the authority of health officials.

“During an emergency is exactly the time we need to act quickly,” said Sen. Karen Tallian, D-Portage, during Senate debate. “But you need to allow the health officer to make a decisive move early and quickly.”

Instead, Tallian said the state is putting up barriers before a local health official can act. “If there is an emergency, we’re going to tell you, ‘no you can’t issue an order or go to court on an order,’ unless this legislative body approves this first.”

Sen. Chris Garten, R-Charlestown, bill author, countered that the legislation was not borne out of conflict between him and local health departments and is not a “knee-jerk reaction” made to any rules made during the COVID-19 pandemic. He added the vast majority of health departments acted admirably and were heroes during the pandemic.

Even so, discontent surfaced during the year among some Republicans about restrictions imposed by Gov. Eric Holcomb and local government leaders, who sometimes imposed stricter conditions, during the pandemic.

The House voted was 65-29 for the proposal, with Rep. Thomas Saunders, of Lewisville being the only Republican to vote against it. The Senate vote was 37-12, with Sen. Jon Ford, R-Terre Haute, the only Republican opposing it.

The bill now goes to Holcomb, who has expressed concern about limiting the authority of local health officials.

During debate, Garten stressed the state needs a structural checks and balance system “to maintain a check on non-elected health officers.” The legislation, he said, assures Hoosiers have an elected body to which they can petition actions taken against them and to have the local body act on them.

Under the bill, if the governor declares an emergency as an executive order, local health departments can’t adopt more stringent orders without first receiving approval from the local legislative body.

A citizen or business affected by an order can appeal the enforcement action directly in circuit or superior court or appeal to the legislative body that imposed the restriction.

Tallian said the original bill called for an informal meeting by the county commissioners or city council to review an order, but now it’s turned into a “gatekeeper threshold” so you are really tying the hands of a health officer in an emergency for up to 53 days before local elected officials could make a final decision.

The bill also stipulates that after June 30, 2021, the appointment of a local health officer is subject to approval by local elected officials. If a nominee for health officer twice fails to win approval, the individual is barred from further consideration for the position.

The bill provides that a local health officer may be removed for failure to perform the officer’s statutory duties or failure to enforce the rules of the state department or “other good cause.”

In a recent release, the Indiana Public Health Association and Indiana State Association of County and City Health Officials voiced their opposition to Senate Bill 5.

Dr. Paul Halverson, founding dean of the IUPUI Richard M. Fairbanks School of Public Health, said the bill “would require new political infrastructure in jurisdictions.” He also worries it would involve officials making “political decisions on matters of public health.”

Susan Jo Thomas, outgoing president of the Indiana Public Health Association, said, “This is really dangerous, and now’s not the time we should be pitting public health officials and elected community officials against each other.”

Dr. David Welsh, health officer for Ripley County in Indiana, is concerned the bill could have a negative impact on health departments’ ability to take immediate action on public health issues, such as water, sewage and food safety.

He is concerned the legislation would allow an establishment to stay open as an appeal is ongoing, preventing immediate action in cases such as a public health concern at a restaurant.