With the state House still not organized, the Senate passed a resolution Friday asking Gov. Mike Dunleavy to declare a short-term, narrowly focused emergency declaration that would continue regulatory flexibility for health care providers and preserve certain federal funds that could be in jeopardy when the current emergency declaration expires at midnight Sunday, Feb. 14.
Dunleavy has said he does not want to extend the emergency declaration administratively, and that he wants the Legislature to do it through its authority.
However, with the House still unorganized and unable to pass legislation, even if the Senate were to pass a bill, and Senate Bill 56 is pending in that body, it would have no legal effect.
What muddies the water is that legislative attorneys have argued in the past that the governor cannot legally extend an emergency declaration a second time. Dunleavy has already extended the declaration now in effect once, in November.
If the governor’s order is legally risky it might not be a problem unless a citizen lawsuit is filed. That could happen, however.
In a statement Friday, Duneavy hinted he may not extend the declaration or order a new one. “In the absence of a declaration, my administration is fully prepared to manage the rollout and distribution of the vaccine to ensure anyone that wants a vaccination will be able to get one,” Duneav said.
“We will also continue to respond to COVID-19 as we begin the process of getting back to normal as soon as possible by focusing on the economy and assisting Alaskans in staying healthy.”
There’s a lot at stake in all this. If the governor does not order a short-term extension a large number of waivers from federal regulations that give health providers flexibility in their COVID-19 response would be lost.
Special professional licensing procedures for nurses and other medical professionals would also lapse, throwing hospitals and nursing homes into uncertainty in maintaining adequate staffing levels.
New federal COVID-19 funding may also be in jeopardy if the state allows the health emergency declaration to expire. State officials are scrambling to identify what funds will be at risk, and so far, it has determined that $8 million in special food stamp funds for low-income Alaskans may be withheld, according to people familiar with the matter.
Although the lack of a functioning state House is the key problem blocking passage of a bill extending the declaration, SB 56 has also become bogged down in the Senate over senators’ questions on whether the bill is too broad and possibly over-reaching.
Even if the House were functioning it’s unclear whether a narrowed sente bill could be fashioned and passed in time.
This puts Dunleavy in a spot. He must roll the dice either way, risking a lawsuit if he does make another emergency declaration and, if he doesn’t and the current order expires, risking the unraveling of a series of waivers from federal rules that allow medical providers flexibility in responding to COVID-19.
One state order that the governor himself said will lapse is the requirement for testing for the virus for incoming air travelers. Instead of a requirement this would become a recommendation for tests.
This could seriously weaken the ability of state health officials to detect positive COVID-19 cases at airports including new variants that are showing up in the Lower 48 states. One variant of the virus has already shown up in Alaska.
Meanwhile, a problem for legislators and for the governor is the confusion that has developed in the public over the extension of the declaration. There’s a widespread belief in some communities including in the Matanuska-Susitna Borough that the emergency health declaration is connected with state and local health mandates.
The closures of schools and businesses, particularly in Anchorage, are being connected to the emergency disaster declaration.
Dunleavy is attempting to explain that there is no connection. In his press conference the governor said the business and school closures ordered by municipalities with health powers and independent school districts are put in place by local, not state officials.
“Business restrictions and mask mandates have nothing to do with the state (emergency) declaration,” but are linked to local communities’ health powers.
In his press conference the governor pointed to Alaska’s long tradition of allowing decisions to be made at the local level. “Our constitution mandates maximum local control,” by municipalities and the state’s 53 independent school districts.
The governor was also irked at rumors, spiked by social media, that the emergency order was a prelude to the state declaring martial law and ordering compulsory vaccinations.
“Where is this stuff coming from? In no way will we order martial law,” a vexed Dunleavy said.
Legislators are pointing to the improving health indicators for Alaska, however, and are asking municipalities, particularly Anchorage, to weigh the economic damage caused by business restrictions and whether they are still justified given the rising vaccination rates.
Dr. Anne Zink, the state’s chief medical officer, said 52 percent of at-risk seniors over age 65 and now vaccinated, and 20 percent of the state’s entire population.
Also, Alaska now has one of the highest per-capita vaccination rates of any U.S. state and the third-lowest mortality rate.
Anchorage has partially reopened restaurants and bars, and schools are being partly reopened.
Sen. Shelly Hughes, R-Mat-Su, the Senate Majority Leader, said the improved indicators show that “Alaska has moved from disaster to a recovery phase on a road to normalcy,” she said in a Friday press briefing.
“We hope municipalities will take note of this,” and allow relaxation of restrictions. Hughes said she hopes schools can be reopened fully, because children have suffered severe losses in education attainment and have suffered emotional distress by not being allowed the social enrichment of in-person schooling.