War of words between governor and legislators over action to extend state COVID-19 emergency health declaration

A state emergency declaration on COVID-19 is set to expire Nov. 15 and although Gov. Mike Dunleavy can extend parts of it through an emergency action other parts will expire unless the Legislature can meet in special session to extend Senate Bill 241, the bill enacted earlier this year that puts the disaster declaration in law.

An extension would keep measures in place giving health care providers flexibility to act under federal rules and give state support for municipal responses to the COVID-19 crisis. Whether and how to call a special session of the Legislature, however, has turned into a war of words that has become increasingly tart.

Dunleavy appears reluctant to call the session himself. He cites COVID-19 concerns but there are likely other reasons, too. He appears to want the Legislature to do it using powers lawmakers have to call themselves into session.

But 40 of the 60 legislators must agree to this and at this point legislative leaders lack the votes, mostly among Republicans, and legislative leaders are turning to Dunleavy to help persuade the reluctant Republicans.

“We are happy to poll our membership with the clear goal of reaching the required 40 ‘yea’ votes. However, as you are aware, it will take your assistance to achieve the necessary threshold for the Legislature to call itself into special session,” Senate President Cathy Giessel, R-Anch., and House Speaker Bryce Edgmon, I-Dillingham, told Dunleavy in an Oct. 30 letter.

The governor’s Chief of Staff, Ben Stevens, had written Giessel and Edgmon earlier on Oct. 30 asking if the Legislature was considering calling themselves into session.

By Nov. 2, however, the exchange took a testy direction. Giessel and Edgmon wrote a more tartly worded letter:

“There is interest in extending the emergency declaration as expressed by members over the last two weeks. However, it is clear after months of what appeared to be a lack of interest in convening the Legislature by your administration, the sudden nature of your request (a reference to Stevens’ Oct. 30 letter) finds many legislators in a difficult position, given the immediate timeline involved and with COVID-19 cases spiking across the state.

“As presiding officers, we believe the only way to get a special session convened is with your administration taking assertive action and appealing to the smaller group of legislators who have, in the past two years, consistently looked to you for direction. Put more succinctly, the combined numbers of both the Senate and House falls short of the two-thirds threshold of 40 of the 60 members required by the Alaska Constitution to call the Legislature into session.

“We are highly confident you are aware of this dynamic, having routinely used it to attain your objectives during the first two years of your administration to thwart veto overrides of your budget, among other procedural matters,” Giessel and Edgmon wrote.

It was interesting to legislators that the letter came from Stevens and not the governor, a signal that Dunleavy appeared to distance himself from a decision to call a special session himself.

There are reasons other than COVID-19 on why the governor would not be happy to see legislators back in Juneau. One is that a “rump” legislative session after the elections could create opportunities for legislators to take up other issues the governor might nor prefer to be dealt with, at least then.

The governor can control this, if he calls the session, through his authority to set the agenda. However, if legislators call themselves into session they set the agenda, which could include things other than the SB 241 and emergency declaration extension. There are also political hazards for the governor if he fails to also propose a special Permanent Fund Dividend, a proposal that would surely fail.

There may be other politics at play, too. Some Republican legislators may prefer to see SB 241 expire because its expiration undercut the state’s support for local health mandates, like wearing face masks.

However, there are consequences if SB 241 does expire Nov. 14. In an Oct. 22 letter to Dunleavy, the Alaska State Hospital and Nursing Home Association, or ASHNHA, told the governor that without the extension medical providers will lose response flexibility under a series of waivers from federal rules for health care procedures. Special medical licensing provisions in state law will also expire, the letter said.

About 125 waivers from federal rules that provide flexibility for 32 categories of health care services and provider types could be in jeopardy. With the declaration in place the state was able to implement a variety of response to the COVID-19 pandemic, said Jared Kosin, CEO at the hospital association.

Flexibilities affected by the expiration include the types of practitioners who can provide telehealth services to allowing hospitals to screen patients at off-site locations, a measure taken to prevent spread of the virus, the letter said.

The loss of flexibility granted by the waivers could also affect screening procedures in hospital emergency rooms, the ability to use space for surge control and quarantine, and expanded roles of practitioners.

The hospital and nursing home association letter was signed by the CEOS of 13 Alaska hospitals and nursing home facilities as well as Kosin, at the hospital association.

Municipalities are also fearful that an expiration of the state’s declaration would undercut their ability to carry out community-level health declarations. “The state’s declaration has allowed to health mandates that greatly contributed to flattening (the virus) curve. More importantly for local governments the declaration has served as a backstop for individual community-level declarations and ensured the adequate flow of resources,” the Alaska Municipal League said in its letter to the governor, which also urged an extension.

“Local governments are better able to take action on their own if they can do so by building on the state’s response,” through and declaration and SB 241. “Compliance is more likely, enforcement less challenging and public health better assured when these mutually reinforcing levels of guidance are in place,” AML said in its letter, which was signed by executive director Nils Andreassen.

Kosin, at the hospital association, warned “the lack of an emergency declaration could place Alaska at risk for missing future federal COVID-19 stimulus relief.”

However, there may be regulatory “work-arounds,” if the emergency declaration is not extended, although they are limited.

“If the governor and Legislature do not resolve the declaration together, we cannot stress enough that Alaska’s health care system still needs a (emergency) declaration (from the governor) in place beyond November 15, Kosin said in an email.

“If the governor were to do a new declaration unilaterally for 30 days, and then repeat that process until (January, when the Legislature meets) if this is allowable, then the federal issue is solved, in that health care providers won’t lose the federal ‘blanket waivers.

“However, it still leaves the issue of losing SB 241. The law has very important provisions for the health care system that relate to telehealth, expedited licensing, and fingerprinting,” Kosin said in the interview.

“If the governor were to pursue the unilateral route, then we hope he would use any emergency authority within his purview to preserve those provisions for telehealth, licensing, and fingerprinting through regulations. We do not know if this is even plausible and how well it would cover the existing flexibilities, but we did ask the administration about it,” he said.

In their Nov. 2 letter Giessel and Edgmon pointed out several other problems:

“As you know, SB 241 is omnibus legislation and contains many provisions that address a significant list of items that will expire if the disaster declaration is not extended,” the two said in their letter.

Some of the critical elements in the statute include:

• Granting the Chief Medical Officer the authority to issue standing orders for healthcare providers related to COVID-19

• Ensures that first responders and healthcare workers receive workers’ compensation if they contract COVID-19

• Creates an expedited path to certify out-of-state licensed professionals to help address the public health emergency