The State of Nebraska on Tuesday rejected a request from Douglas County’s health director who was seeking authority to implement a countywide mask mandate.
Douglas County Public Health Director Lindsay Huse asked the Nebraska Department of Health and Human Services for approval to issue a directed health measure requiring people to wear face masks indoors in the county. The temporary mask mandate would have applied to school districts across Douglas County as well as other indoor settings.
Huse, in explaining her decision to send the letter Tuesday morning, cited the rising number of COVID cases in the county, including among children.
“Our kids deserve protection,†Huse said. “And they deserve an education. Our families deserve protection.â€
Gary Anthone, the state’s director of public health and chief medical officer, denied the request.
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Anthone wrote that the state was obligated to “balance the benefit of the public with that of individual liberty and consider the applicable state statutes.â€
He noted that previous mask mandates were limited to specific circumstances when social distancing was not possible.
“Under the current circumstances, imposing restrictions on every individual at a district level is not appropriate,†Anthone wrote. “The Department has not imposed or approved restrictions on individuals unless the specific individual posed an identifiable risk to others.â€
Anthone’s boss, Gov. Pete Ricketts, has opposed mask mandates throughout the pandemic. Ricketts’ spokesman Taylor Gage said Tuesday that the state’s position remained unchanged. He referenced a statement issued by the governor after the federal Centers for Disease Control and Prevention last month recommended masking in indoor public settings and in K-12 schools, even for vaccinated people.
Ricketts said then that Nebraska’s return to normal would not be interrupted by the new CDC guidance. “It’s time for the CDC and the government to get out of the way, and to stop trying to tell people how to live their lives,†Ricketts said .
Instead of mandates, Ricketts has encouraged Nebraskans to voluntarily wear a mask, when appropriate, and get vaccinated.
State officials have said since last year that the Douglas County Health Department does not have the legal authority to issue a mask mandate without the approval of the Nebraska Department of Health and Human Services.
However, those limitations do not apply to Lancaster County, where on Tuesday the Lincoln-Lancaster County Health Department announced it was issuing a directed health measure restoring the county’s indoor mask mandate for people age 2 and older, regardless of vaccination status. The mandate, which had been recommended, will take effect Thursday at 12:01 a.m. and run through Sept. 30. The department has a special status under state law and does not have to seek state approval for its actions
Health Director Pat Lopez cited rising cases and hospitalizations in Lancaster County, including 249 cases in schoolchildren and outbreaks in eight child care centers and a third of the county’s long-term care facilities.
Speaking to the Douglas County Board on Tuesday, Huse framed her mask mandate request as a tool to help keep students in school, protect them and their families from the spread of COVID and help health systems “until we can get transmission to a manageable level and a vaccine approved or authorized for our elementary schoolkids.â€
“Last week we closed several classrooms in the Millard schools, sending home nearly 100 children in that district,†Huse said. “And over the weekend we sent letters keeping over 140 kids and staff members in the Ralston School District.â€
In anticipation of the state’s denial, local officials said it will likely be up to individual cities, towns and school districts in Douglas County to decide whether to make masks mandatory.
“If he says no, then we’ve used up all our arrows as a county,†said Chris Rodgers, president of the Douglas County Board of Health. “Then the only thing we can do is chirp from the rooftops and recommend and say we want you to do this.â€
Huse said vaccinations are increasing in the county, but not fast enough. She said hospitals are running at 80-85% full, intensive care units at about 80% full, and the number of people on ventilators with COVID rising slowly.
“Where before we were seeing between 12 and 16 people on a ventilator, now we are seeing between 18 and 19,†she said. “We are seeing more severe cases.â€
The directed health measure Huse proposed would have required masking for all people over age 5, in indoor public settings with some exceptions, until two benchmarks were met.
“First our community transmission drops below the substantial category,†she said. “Second, until eight weeks have passed since a COVID vaccine is approved for children between the ages of 5 and 11.â€
Huse said that state officials had told her that the state would mount a court challenge to a mask mandate, possibly resulting in an injunction that would prohibit enforcement of the order.
She said Tuesday that the governor has been clear about his stance on mask mandates.
“I can understand that people want to be over wearing masks,†she said. “But unfortunately, we’re seeing a resurgence of a highly contagious variant right now. ... And at least in Douglas County we need to consider the best actions to protect our community here.â€
Huse said earlier that she hadn’t decided what she’d do if the state rejected her request.
“We really need to set down and strategize about what our next steps will be,†she said. “We’re going to continue to talk to our local lawmakers to see what the willingness is there and what avenues we might be able to take.â€
Some attorneys said last year that the Douglas County health director has the authority to issue a mask mandate for the City of Omaha. Rodgers said Huse is unlikely to do so without Omaha Mayor Jean Stothert’s support. Stothert said Tuesday that she does not support another mask mandate. Omaha City Council members said last week that they did not intend to pursue a mandate.
The Omaha Public Schools are requiring masks to be worn indoors by students, faculty and staff and all of its schools. Other school districts in the county have a variety of mask policies. Some are making them optional at all levels. Others are requiring masks only in elementary schools.
A similar scenario played out last summer before the City Council, in the face of rising COVID cases, adopted the first ordinance requiring masks indoors on Aug. 11. Lacking state approval to issue a countywide mandate, then-Health Director Adi Pour had been moving toward implementing a requirement for Omaha. Facing a legal disagreement, she opted not to pursue the option.
On Tuesday, one citizen commented to the County Board about the mask mandate. Cindy Maxwell-Ostdiek, mother of three Millard Public Schools students, rose during the open public comment period to plead with the county for a mask mandate.
“I am upset that our governor is working against public health and safety,†Maxwell-Ostdiek told the board. “I understand that in the past there was a threat of a lawsuit if Douglas County instituted a mask mandate. But I’m hoping we can overcome that and that people will stand up and do the right thing.â€
Huse’s attempt Tuesday was welcome news to Maxwell-Ostdiek. She approached the health director after the meeting and thanked her.
“You’re doing the right thing,†Maxwell-Ostdiek told Huse.
World-Herald Staff Writers Julie Anderson and Sara Gentzler contributed to this report.