Health Department eyes expanded authority
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A state Supreme Court decision that found the state Health Department didn't have the authority to require school children throughout the state to wear masks during the COVID-19 pandemic is driving a new movement to expand the Health Department's authority, possibly starting as soon as 2028.
In the proposed rule’s statement of statutory authority, Health Department officials raised the state Supreme Court’s decision in Corman v. Acting Secretary of Pennsylvania Department of Health. That decision ruled that the state Health Department’s powers to enforce disease control measures were restricted by regulation that only gave the Health Department the ability to conduct disease surveillance to enact measures like school-wide mask requirements.
“Ultimately, the court held that the department lacked the power to issue the masking mandate, but notably pointed out that, ‘of course, the department has the power to promulgate a different regulation, or to amend this one to … strip the ‘any other disease control measure’ catch-all of its limiting language.'” The foregoing decision influenced the department’s proposed amendments to Section 27.60(a), which propose to add ‘prevention, containment or mitigation’ as justifications for the implementation of all disease control measures available to the department under the Disease Prevention and Control Law.”
The state Health Department has proposed several new regulations in Rulemaking case 10-242. It is being reviewed by the state's Independent Regulatory Review Commission. This week, Rep. Kathy Rapp, R-Warren, joined 84 other House members outlining concerns with the regulations.
"We cannot trade constitutional protections and personal liberty for the heavy hand of government oversight into many facets of our lives," Rapp said. "Pennsylvanians lived through severe government overreach and mandated shutdowns during the COVID pandemic. The overreach was so pervasive that the voters amended our state Constitution to ensure that there is more oversight on executive authority during disaster declarations. These proposed regulations bypass the legislative process to hand broad, unchecked authority to unelected bureaucrats. Policy changes of this magnitude belong in the General Assembly, not buried in a 502-page agency package."
Known as Chapter 27 regulations, the Health Department has started a rulemaking process that would broaden its authority over infectious disease outbreaks. The proposal nearly doubles the list of diseases, infections and conditions that are required to be reported to the state Health Department from 63 to 116 while giving the department more authority to take action for the purpose of preventing, containing or mitigating a disease outbreak.
The new regulations would also significantly change the language that governs the health department’s disease-control procedures, including expanding areas where the Health Department can investigate disease outbreaks, including several apartment buildings, schools, colleges or universities. Current law limits Health Department investigations to a “house, health care facility, building or other premises.” The 502-page proposal also includes providers reporting health data faster and in some cases requiring the sharing of some data that is currently shared voluntarily. The proposal would require healthcare providers to report when an immunization is administered. Many providers do this voluntarily, but according to the department’s analysis, roughly 4,750 providers would be required to establish a reporting process.
The regulations also would officially align itself with the childhood immunization schedule outlined by the American Academy of Pediatrics rather than the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices.
According to Rapp, the proposed regulatory package is an expansion of bureaucratic control that she said threatens people's constitutional liberties, medical privacy and parental rights of citizens across Pennsylvania. She said expanding mandatory vaccine reporting and allowing increased access to private medical records erodes medical privacy while giving health officials the authority to enter school buildings and interview students privately for disease-control investigations without clear parental knowledge or consent is an intrusion on schools and parents.
Rapp also called attention to giving the state Health Department the ability to enter private residences for disease control investigations while remaining silent about whether a search warrant is required prior to entering a residence. She also questioned expanding protocols for contact tracing, isolation and quarantine as well as unilateral executive powers to re-impose mask mandates or other measures. Rapp and her fellow Republicans also said the changes should be handled legislatively rather than through a regulatory process.
"With over 4,000 comments submitted by the public, which are overwhelmingly against the proposal, the department should withdraw this regulatory package and engage with the General Assembly before it submits new proposed regulations. I will continue to fight to ensure that our personal freedoms are never subordinated to bureaucratic overreach." Rapp said.
State Senate Republicans also raised concerns with the Health Department's proposal. Sen. Kim Ward, R-Westmoreland and Senate president pro tempore, said the regulations would infringe upon the constitutional rights of Pennsylvanians and carry significant economic and social consequences.
"The proposed regulations represent executive-branch overreach reminiscent of what we experienced during the COVID-19 pandemic -- but this time, the rules would be permanent," Ward said. "Every Pennsylvanian should understand these regulations and how they could impact their lives."