Legislature moves to leave mask mandates up to local officials and businesses as state's positive-test rate reaches a new high

State Department for Public Health graph; for a larger version, click on it. 

By Al Cross and Melissa Patrick
Kentucky Health News

The Kentucky General Assembly is quickly moving to leave all decisions about masking to fight the surging pandemic at the local level, where most school officials were reluctant to impose them when they had the chance.

In the first day of a special session that may only last three, legislative committees approved bills to keep Gov. Andy Beshear from re-imposing the mask mandate he issued last summer and abolish the school-mask mandate that was imposed last month by the state school board he appointed.

Beshear and his Democratic allies in the Republican-controlled legislature asked that the governor at least be able to impose mask mandates in counties with certain rates of infection. The week ending Sunday had the most coronavirus cases yet, and the share of Kentuckians testing positive for the virus in the last seven days is a record 13.74%.

House Democratic Leader Joni Jenkins, D-Shively, tried to offer an amendment to give state officials power to issue mandates in counties with high levels of virus transmission, but she was ruled out of order.

Senate Minority Leader Morgan McGarvey of Louisville told Kentucky Health News that he offered to let Republicans pick the infection level at which the governor could have mask-mandate power, but they declined.

Republicans said they are putting the power where it belongs, at the local level. "The people are speaking through their duly elected 138 legislators," said Majority Floor Leader Damon Thayer, R-Georgetown.

Senate Education Committee Chair Max Wise of Campbellsville, sponsor of Senate Bill 1, which abolishes mask mandates in schools and daycare centers, was asked if this sets up such decisions to be made based on politics and not public health policy.

Wise acknowledged that many of those making such decisions don't have a public-health background, but "We're hoping that many of those local health professionals will be talking to school board members, the same thing as parents who were pushing for what they want will be talking to local elected officials too," he said. "Local people, local elected officials, know their people."

The bill passed Wise's committee 8 to 5. Sen. Reggie Thomas, D-Lexington, called it "completely irresponsible."

Most legislators don't pass through the Capitol rotunda, but those
who did saw this new display. (Photo by Al Cross; click to enlarge)

After lamenting the political nature of the issue, Sen. Alice Forgy Kerr, R-Lexington, asked for assurances that the had been fully vetted. Senate President Robert Stivers, R-Manchester, said while Beshear was part of the discussion, that didn't mean he would get what he wants.

Beshear's office said it gave legislators a long list of scientific references on usefulness of masks, and he said at his weekly Covid-19 press conference, "Universal masking is absolutely necessary if we want our kids in school."

Education Commissioner Jason Glass said after the meeting that the bill “does not go far enough in providing the flexibility in different school models that [our districts] need to support continued school operations given the disruptions you are currently experiencing due to Covid-19 outbreaks and quarantining. Further, the politically motivated effort to remove masking requirements in public schools flies in the face of virus mitigation efforts at the very time they are needed most.”

At least 38 Kentucky school districts have paused instruction during the new school year due to high levels of infection. The bill gives the state Department for Public Health 14 days to develop a optional "test-to-stay" model to avoid quarantines for students who have been exposed to the virus but test negative and have no symptoms. They would be tested for a period of days to see if they can remain in the classroom or be quarantined.

The bill also gives school districts more flexibility for in-home learning and replaces the requirement for a minimum number of school days, instead setting a minimum number of hours and allowing schools to have school days as long as seven hours, while prohibiting instruction on Saturdays.

The ban on a statewide mask mandate is in House Bill 2, which was approved by the House Health and Family Services Committee. "These orders will be decided upon at the local level," by local officials and businesses, said Rep. Kim Moser, R-Taylor Mill, chair of the committee and a nurse by trade.

Rep. Lisa Willner, D-Louisville, said she was hearing from business owners that the issue has become so politicized that they appreciated "the executive branch kind of taking the heat for them."

Moser replied, "It is not really the job of the government to come in and give cover to private businesses. . . . even when it comes to the health of their patrons. They are able to decide what's best for their business."

The bill includes provisions to boost the use of monoclonal antibodies, an experimental Covid-19 treatment that has proven effective under a federal emergency-use authorization; allow paramedics to work in hospitals and nursing homes; and allow families of nursing-home patients to name an "essential caregiver" who would have the right to visit the patient.

The bill also tells the the state health cabinet to partner with universities and health-care organizations to produce public-service announcements about the severe effects of Covid-19 and "talk with their doctor about the benefits of receiving a Covid-19 vaccination;" and to implement a plan to improve access to Covid-19 vaccinations in doctor's offices.

Both chambers passed and sent to Beshear a House resolution to confirm most of the other orders that he and state agencies have issued until Jan. 15, when a regular legislative session will have begun. 

Sen. Ralph Alvarado, R-Winchester, voted for the resolution, but expressed concern over a section that he said would allow nurse practitioners to write more prescriptions for narcotics. “Prescribing more controlled substances does nothing to help us treat Covid more rapidly or effectively,” he said, adding that opioid prescriptions by NPs had risen recently while those by physicians and dentists had declined. Alvarado is a physician. 

Objections from other Republican senators to certain features of the bills got little traction, indicating that the Senate leaders had worked out differences and lined up votes. "This has been a true compromise," said Senate State and Local Government Committee Chair Robby Mills, R-Henderson. 

McGarvey said after the committee meeting that Republicans "are bending over backward to ensure anything rational stays, while taking care of their political base," which is strongly opposed to masks.

Thayer told the Senate that "a large portion of Kentuckians were not pleased with the governor's unilateral actions," taken under a state of emergency that he declared March 6, 2020, when the state reported its first case of Covid-19.

The legislature passed laws limiting the governor's emergency powers, and the state Supreme Court upheld those laws Aug. 21, prompting Beshear to call the session. The court's order will become final at midnight Friday, and the legislature will have its business done by then, under parliamentary maneuvers the House and Senate took to suspend or avoid the constitutionally required three readings of bills in each chamber on separate days.

Daily numbers: These decisions are being made as coronavirus cases continue to surge across the state. Beshear said that Kentucky saw 30,680 cases in the reporting week that ended Sunday, setting a record, and that between Saturday and Tuesday, he there were more than 13,000 new cases and 60 deaths attributed to Covid-19, eight of them under 50. 

The state reported 2,356 new cases of the virus, low among recent Tuesdays, almost surely due to the Labor Day holiday on Monday. The three-day weekend brought the seven-day average of new cases to 4,073 per day, down from the record average of 4,398 posted on Sunday. 

“We continue to see more cases than is safe by any means,” Beshear said at his weekly Covid-19 news conference. “The bad news is we had the worst week ever last week. Our hospitals continue to be pushed to the brink. If we have one bad week, we can very quickly run out of ICU beds.”

And while the state is still seeing record numbers of cases each week, Beshear said the escalation seems to be slowing, although he cautioned that it is too soon to be sure.

Hospitals reported 2,353 Covid-19 patients; 661 patients in the intensive care units; and 433 on mechanical ventilators.

All but two of the state's hospital-readiness regions are using more than 89% of their intensive-care beds. The two are the far-west region and the northeast region.

Kentucky's infection rate over the last seven days is 84.73 daily cases per 100,000 residents. Counties with rates more than double that rate are Perry, 223; Clay, 206.7; Leslie, 203.9; Rockcastle, 198.5; Bell, 188.2; Russell, 184.1; Whitley, 178.5; and Breathitt, 176.5. All are in Appalachia.

The state reported five more deaths from the virus, bringing Kentucky's pandemic death toll to 7,905.