SOUTHERN INDIANA — A day after Indiana legislators voted to override a gubernatorial veto on a bill aimed at giving elected boards more say than local health officers when it comes to pandemic restrictions, local representatives explained their votes.

On Monday, the Indiana House voted 59-30 and the Senate 36-10 to override Gov. Eric Holcomb’s May 4 veto of Senate Enrolled Act 5, less than two weeks after the final version was passed.

Co-authored by Sen. Chris Garten (R-Charlestown), the bill was referred to the House in early February, referred back to the Senate with modifications in early April and passed April 28.

The language relates largely to actions taken by a health officer during a pandemic or epidemic and states that in cases where either the local restrictions are stricter than statewide ones or where there is no statewide emergency order in place, those affected by the restrictions can appeal the enforcement to an elected board or in court.

For example, if a statewide order said restaurants and bars had to be limited to 75% capacity for COVID-19 safety, and a local health officer in an area with a higher case concentration wanted to limit that to 50% capacity, a restaurant owner could appeal that decision to, in most cases, the county commissioners.

While supporters say the measure should provide more checks and balances, others say it’s dangerous to take authority away from health experts during a dire situation and that the appeals process is too long.

In a statement, Garten said the motion to override the governor’s veto means more oversight by local government officials to protect residents’ civil liberties.

“I appreciate what the appointed local health officers across our state have done in the face of the pandemic, but it’s critically important we have elected officials making the final decisions in the communities they serve,” the statement said, in part.

“When religious liberties are limited, family businesses are being closed and fines are being imposed on Hoosiers for simply living their lives, structural checks and balances need to be in place — SEA 5 is exactly that. I’m confident this policy will improve public accountability by giving elected officials greater oversight in these difficult decisions.”

Rep. Ed Clere (R-New Albany), a House co-sponsor, worked closely with Garten and others to create the final version.

“My interest from the beginning was making it a balanced bill,” he said, adding that Garten “was very collaborative and engaged and I was glad to be able to work with him on the bill and get to where we ended up.”

While there is some question as to the broadness of the language, Clere said his interpretation is that this would not apply to a health officer’s ability to act quickly in the case of an outbreak of a disease.

“Nor does it in any way interfere with a health officer’s day-to-day enforcement activities,” said Clere who has supported various legislation to help mitigate other public health crises such as HIV. “Rather it applies in the case of an epidemic or a pandemic.”

Rep. Rita Fleming (D-Jeffersonville) said she felt the vote was disappointing, and that “right now during a pandemic is probably the worst time that we could be restricting public health officers’ need to act in an emergency,” adding that “the governor does not veto bills indiscriminately.”

She said that while she doesn’t disagree with a person’s right to appeal, the process as written can be so long it can make any protective measure by the local health department useless.

“I agree with Sen. Garten that representation from all involved when there is a controversial decision [is good,]” she said, adding that the problem comes with the nearly two months a local emergency order can be stayed while under appeal.

As written, anyone affected by an enforcement outlined in this bill who wishes to appeal must do so within seven days of the order. The legislative body, which in both Clark and Floyd counties is the county commissioners, can stay the order. The board then has 15 days to determine if it will hear the appeal, and another 15 days to hold the hearing. A decision must be made within 15 days of the hearing, which means a local order could be in limbo for up to 52 days.

“In a crisis when a public health officer recognizes an emergency, to hold up any action for that length of time, I can’t describe it in any other way but dangerous,” said Fleming, a retired physician.

Clere said his work with others on the bill included modifying language as it pertained to the appeal. In the first version that passed the Senate, the stay would be executed immediately upon any appeal filed, and include not only actions related to a pandemic or epidemic, but other decisions by local health officials.

In a statement issued Monday, Holcomb said the state is in a good position financially due to the “heroic local response to the pandemic that was permitted by a system rewarding speed, collaboration and medical expertise in a time of health emergency.

“In most cases, the cooperation between local elected officials and local health officials was superb,” the governor said.

But, he added that with the legislative decision, “I would have hoped that such sweeping change could wait until we gathered all the relevant experts and stakeholders to strike the right balance regarding local health authority during emergencies and avoid discouraging laudable service in the field of public health, especially knowing that it’s locally elected officials who appoint the local department of health board that hires the local health director in the first place.”

A joint statement from Dr. Jeremy P. Adler, president, Indiana State Association of County and City Health Officials and current health officer of the Tippecanoe County Health Department, and Susan Jo Thomas, past president of the Indiana Public Health Association, says they are “extremely disappointed in the Indiana legislature’s decision to override Gov. Holcomb’s veto of Senate Enrolled Act No. 005. This legislation is a dangerous overreaction to life-saving measures taken by local health departments during the COVID-19 pandemic.”

The statement continues to say that Indiana’s issues with public health stem not from decision-making but with lack of infrastructure to carry out public health functions.

“We hope that this legislation will be reconsidered in the future,” it reads. “Our 1,300+ local health department employees, as well as thousands of other doctors, nurses, public health professionals and hospital leaders are more than willing to collaborate on meaningful efforts to improve public health in Indiana.”

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