The Virginia Senate has been meeting in the Science Museum of Virginia during the pandemic. (Pool photo by Steve Helber/Pool)

Over the strong objection of Gov. Ralph Northam’s administration, a Senate committee advanced a bill that would curtail emergency decisions made by the state health commissioner, in part spurred on by frustration with the administration’s initial refusal to release information on nursing homes experiencing COVID-19 outbreaks.

Five of the Senate Education and Health Committee’s nine Democratic members voted with Republicans on Wednesday to advance legislation from Sen. Steve Newman, R-Lynchburg, that limits the duration of emergency orders or regulations from the commissioner to 30 days. Those decisions can be extended, but only if the Virginia Board of Health votes to adopt the measures.

The bill also limits emergency decisions made by the board itself to 30 days, though members can reconvene to re-extend the policies for another month. No emergency order could be extended for longer than 18 months unless the board adopted a more permanent regulation through the state’s formal administrative process.

“My concern is that we currently have a Board of Health that is packed with 15 professionals, but thus far we’ve only had the commissioner taking all the actions,” Newman said, pointing out that current state law allows the commissioner to act on the board’s behalf. “This bill basically would say that the commissioner can act for 30 days on emergency regulations, but after that, the board needs to get together and they can act.”

The bill was referred to the full Senate on an 11-3 vote with one abstention. 

Since the start of the COVID-19 pandemic, Virginia Health Commissioner Dr. Norman Oliver has issued several emergency orders in collaboration with the governor — setting early limits on business operations, temporarily halting elective procedures, and requiring face coverings indoors

An early decision by the administration to withhold the names of nursing homes and assisted living facilities with COVID-19 outbreaks was also “based on guidance from the Virginia commissioner of health,” according to Northam spokeswoman Alena Yarmosky. But the policy, which was suddenly reversed in June, attracted months of bipartisan criticism from legislators who said it prevented residents and their families from accessing vital health information.

Sen. George Barker, D-Fairfax, said frustration over the policy led to wider support of Newman’s bill. “Initially, they refused to identify long-term care facilities and other types of operations that had outbreaks because they were interpreting language in one section of the code to apply very broadly to everything,” he added. “And what this does is address that issue. It’s good to have a discussion and debate about those types of things, and this will basically ensure that the Board of Health is involved.”

Barker, along with at least three other legislators in the House and Senate, has also introduced a bill that would clarify the code section and require the Virginia Department of Health to release information on outbreaks in long-term care facilities and other health settings. And while he said the “concept of the bill” was good, he ultimately abstained from voting on the measure, worried that requiring the Board of Health to renew an emergency policy every 30 days would delay the decision-making process. 

Oliver also testified against the bill on Wednesday morning, telling legislators that the administration “strongly opposes the measure.

“The response to the COVID-19 pandemic has demanded rapid and efficient decision-making,” he said in a later statement,” adding that the legislation “would significantly hamper the commonwealth’s ability to address dangers to the life and health of Virginians.”

“On this he’s just wrong,” Newman responded. “This gives you 30 days to do whatever you want and then bring the board in.”

The legislation still has to pass both the House and the full Senate before it could go into effect. It does not include an emergency clause, which means enactment would be delayed until four months after the end of the special session.

Barker also said bipartisan support is unlikely to extend to several pieces of proposed Republican legislation that would limit the duration of emergency orders from the governor.

“I wouldn’t count on it,” he added.