County health officers regained powers as delta variant cases spike in Kansas. Will they use it?

Andrew Bahl Blaise Mesa Jason Tidd
Topeka Capital-Journal

With a key set of reforms limiting how local and state officials can respond to COVID-19 struck down in court last week, county health officers in Kansas regained a set of tools at a critical juncture, as the delta variant has seen case counts jump in recent days.

Whether any counties will use their ability to issue health orders, limiting gathering sizes and imposing other mitigation requirements remains to be seen, however, as the political realities of the virus remain unchanged.

Johnson County District Court Judge David Hauber opened the door last week when he ruled Senate Bill 40, the sweeping set of changes to the state's emergency management law approved earlier this year by legislators, to be unconstitutional.

Many of the provisions affected by the decision, including the ability for individuals to challenge a county or school district's virus mitigation protocols, aren't in effect after Republicans ended the state's COVID-19 emergency declaration last month.

But while the decision may well be overturned in court eventually, Hauber's decision currently gives local health officers the ability to issue orders without the explicit approval of their county commissioners. Gov. Laura Kelly also has more flexibility to issue another statewide emergency order if she so chooses.

COVID-19 cases in the state have doubled since the July 4 holiday, with hospitalizations also on the rise in the state. The increases have been particularly acute in the southeast corner of the state, with a major spike of cases occurring across the border in Missouri, largely fueled by the delta variant.

More:'We are in trouble': Kansas COVID case rate doubled, hospitalizations up 32% since July 4 holiday

Is the time right for renewed COVID-19 restrictions? Counties say no.

Erin Locke, Shawnee County's health officer, presents during a county commission meeting on COVID-19 variants last month. After a law limiting local and state officials in their COVID-19 response was struck down in court last week, county health officers have the option of issuing more mandates to curb the virus's spread.

But whether this forces a change in mitigation efforts at the local level remains to be seen.

A spokesperson for the Shawnee County Health Department said last week there would be no imminent health orders coming from the office. When asked Monday about the potential for new orders, the department declined comment, saying they were still reviewing the impact of the SB 40 decision.

No health orders are forthcoming in Crawford County as well.

Teddi Van Kam, the county’s health department director, said cases are "skyrocketing" when compared to May. The county had single digit weekly case counts months ago before reporting 167 cases last week. Data from the White House Coronavirus Task Force shows the county has the second highest rate of new cases in the state.

But she said there is no “magical number” of cases that would trigger any orders, and added the ability to implement orders is nice to have. Van Kam encouraged people to think proactively and get vaccinated.

“We have the tools now. The vaccine is our tool,” she said. “Those who have not been vaccinated really need to reconsider. The vaccine is truly safe.”

More:'Do not send your child to camp with sickness': Summer camp COVID-19 clusters in Kansas infect youths and staff

Dennis Kriesel, executive director of the Kansas Association of Local Health Departments, said he believed most health officers would follow the same route and take a wait-and-see approach. 

Legislation passed in 2020 still gives county commissioners the power to overturn an order issued by a health officer. And given that many also double as administrators for their county health department — a position appointed by the county board — publicly crossing swords with local elected officials could be detrimental, he said.

"It's like you die on the hill and the hill is going to get bulldozed as soon as you're gone," Kriesel said.

But if COVID-19 case counts continue to increase, health officials may be left with little choice.

Steve Stites, chief medical officer at The University of Kansas Health System, said the more contagious delta variant and the high number of unvaccinated Kansans were the main factors contributing to the worsening pandemic picture.

But there was a third factor also, he added, the loss of public health mandates in the state. He pointed to early spring, when COVID-19 case counts were lower with many restrictions still in place, despite the fact that fewer people were vaccinated.

"We are going to come to a reckoning again at some point," Stites said Monday. "I don't think anybody's ready to do that yet. I don't think there's the political nor the social willpower yet to do it. But I think at some point we could get faced with that if we end up like Springfield. Just look at the rapid, exponential rise in COVID."

More:Shawnee County COVID-19 cases in 'midst of a surge.' Here is where you can get vaccinated.

Will schools take action of their own with fall classes looming? 

One area where Kriesel said local health officials could take greater action is with respect to schools, as they now have more authority to push school districts to strengthen their mitigation requirements.

Younger Kansans are less likely to be vaccinated and with no imminent signs of COVID-19 vaccines being approved for children under 12, there will likely be whole swaths of students without immunity to the virus when they return to school in the fall.

"We know schools can function safely if they put in place those basic infection control measures,” said Lance Williamson, the infection prevention and control nurse supervisor at The University of Kansas Health System. “We saw it over the last year. I do think there are some sensible things that schools can do to stay safe.”

The American Academy of Pediatrics recommended Monday that masks be worn by all students come fall, regardless of their vaccination status.

Such a move would be contentious in many corners of the state. Even many larger districts, including Wichita and Olathe, have said masks will be optional. The Kansas Department of Education and Kansas Department of Health and Environment have yet to issue any sort of statewide guidance on the matter.

Still, Johnson County health officials said last week they will recommend schools in the county require masks, although most districts in the county previously indicated they would make masks optional.

While the move is not a mandate, Kriesel said he could envision health officers taking that step in the future, as such an order would be targeted at a narrower population than a countywide requirement.

"Maybe that gets buy in," he said.

More:Kansas nursing homes fall short of staff vaccination goal as COVID-19 outbreaks continue

Kansas governor plays down need for statewide order

Gov. Laura Kelly shakes hands with Dan Leong, with Immunize Kansas Coalition, during an event last month. Kelly said Tuesday the state's focus was on increasing vaccinations against COVID-19, although a court ruling last week has given her more flexibility in issuing a statewide emergency declaration over rising virus cases.

The court decision last week also is a boost to the powers of Gov. Laura Kelly, at least temporarily. She can theoretically now issue a longer statewide emergency declaration without needing the approval of Republican legislators to make it stick.

Such a move would give the state more flexibility in helping hospitals if they eventually become overwhelmed, something that has happened with many of their counterparts in Missouri.

And it could set the stage for executive orders to tackle the new stage of the pandemic, although counties still have the ability to opt out of any statewide mitigation orders, including mask mandates.

More:Anyone can request a COVID-19 vaccination clinic in Shawnee County. Here is how you do it.

When asked about the matter Tuesday, Kelly said her administration was still reviewing the ramifications of the decision.

But she said the focus presently was on increasing vaccination rates in order to prevent the delta variant from spreading in the first place.

"There is no red line," Kelly said when asked if there was a point where she would consider re-issuing a disaster order. "We're focused on doing what we can to get people vaccinated and make the delta variant irrelevant to them."