Virginia Senate unanimously votes to limit emergency orders by state health commissioner

Sen. Steve Newman, R-Bedford, makes remarks during debate of SB5120 dealing with changes to the elections laws as debate continued in the temporary Virginia Senate chamber inside the Science Museum of Virginia in Richmond, VA Thursday, August 27, 2020. Listening, right, is Senate Majority Leader Dick Saslaw, D-Fairfax.

The Virginia Senate unanimously voted Thursday to set limits on orders of one the state’s top health officials — a bill fueled in part by frustration over the lack of transparency on outbreaks of COVID-19 in nursing homes throughout much of the pandemic.

Gov. Ralph Northam’s administration has strongly opposed the legislation — objections that make its success unlikely as it crosses over to the House of Delegates, which tabled a similar bill in the first week of the ongoing special session. Current Virginia Health Commissioner Dr. Norman Oliver previously said that the Senate bill would restrict his decision-making during the COVID-19 pandemic, which he described as an “unprecedented and rapidly evolving emergency.” 

“It is important to the commissioner and to the Board of Health to retain the ability to quickly respond to and prevent the spread of contagious and infectious diseases,” he added during a Senate committee hearing in August. “This bill adds additional steps to decision-making and would make it more difficult for the commonwealth to make decisions in a timely way.”

The legislation, sponsored by Sen. Steve Newman, R-Lynchburg, would limit the duration of executive orders from the health commissioner to 30 days unless the state’s Board of Health voted to extend them. 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. Newman has flatly disagreed that the bill would hamper the administration’s response to the pandemic, saying Thursday that the board could meet virtually to extend a decision.

“This just ensures that the Board of Health joins the commissioner any time there’s an emergency order and they would work together on that,” he added.

State Health Commissioner Norman Oliver speaks at a press conference in August. (Ned Oliver/Virginia Mercury)

Many Republican legislators have regularly criticized the administration’s decision-making during the COVID-19 pandemic, often arguing that emergency safety orders signed by Northam and Oliver unfairly infringe on the constitutional rights of Virginians. Multiple bills were filed in an effort to curb that authority, including several that would have limited the length of the governor’s executive actions. 

Newman’s, though, is the only to survive committee hearings and pass through at least one chamber. Sen. George Barker, D-Fairfax, said bipartisan support of the legislation was fueled at least in part by the administration’s decision to withhold information on nursing homes and assisted living facilities with outbreaks of COVID-19 (a policy that was suddenly reversed in June). A month earlier, Northam spokeswoman Alena Yarmosky said the nondisclosure policy — which attracted strong criticism from both Democratic and Republican lawmakers — was “based on guidance from the Virginia commissioner of health.”

“It’s good to have a discussion and debate about those types of things, and this [bill] will basically ensure that the Board of Health is involved,” Barker added in an interview last month.

In a statement Thursday, Yarmosky said the legislation would hurt both the commissioner and the board’s ability to respond in cases of emergency “and specifically to prevent the spread of infectious diseases like COVID-19.”

“The administration is continuing to work closely with legislators on this issue,” she added. “Governor Northam will review this bill if and when it reaches his desk.”