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Health director issues temporary mask mandate for Omaha; AG threatens lawsuit
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Health director issues temporary mask mandate for Omaha; AG threatens lawsuit

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Douglas County Health Director Lindsay Huse issues Omaha mask mandate

Douglas County Health Director Lindsay Huse issued a mask mandate Tuesday for schools and many other public indoor spaces in the city of Omaha, but the Nebraska attorney general is threatening legal action to stop it.

Lindsay Huse

Lindsay Huse

The order was set to take effect at 12:01 a.m. Wednesday. Under the order, schools, many businesses and other entities whose premises are open to the general public must require people age 5 and older to wear a face covering over their mouth and nose while indoors, unless the people maintain a distance of 6 feet from each other.

But there are many exceptions for individuals and places where the mandate will not apply, including religious services.

Huse cited an “astronomical spike in cases” that is threatening to overwhelm already strained hospitals and health care workers. A mask mandate is needed to slow transmission of the omicron variant of COVID-19, Huse said.

“This was not an easy decision at all and I know that it’s going to create some waves,” Huse told the Douglas County Board. “But this is a tool that is in our toolbox. We have research evidence out there showing that masks decrease transmission.”

The move is opposed by Nebraska Gov. Pete Ricketts, who said the Douglas County Health Department lacks the authority to issue such a mandate. Ricketts asked Nebraska Attorney General Doug Peterson to consider legal action. Peterson sent Huse a letter Wednesday afternoon threatening a lawsuit to stop the mandate.

Omaha Mayor Jean Stothert also opposes a mandate, but she said that Huse has the authority to issue one.

Huse and Douglas County Board member Chris Rodgers, president of the Douglas County Board of Health, said they believe they are on solid legal ground, based on the advice of City of Omaha and Douglas County attorneys.

Huse said the measure will be temporary, possibly four weeks. She will act under the authority delegated to her under Omaha’s city code.

Huse said the order likely will come with benchmarks, including reducing case rates in the county to under 200 cases per day per 100,000 residents.

Currently, Douglas County is adding more than 1,100 case a day on a seven-day rolling average.

masks-LS01

People on their way into Hardy Coffee Benson wear masks on Tuesday. The temporary mask mandate for the city of Omaha was set to take effect at 12:01 a.m. Wednesday.

Hospital capacity also would have to drop to 85% or less for a week. “We’ve got to give them breathing room to take care of all of you,” Huse said.

The number of COVID cases in the county has exceeded past peaks, and the number continues to rise. Hospitals already are above 93% of their capacity.

In a statement her office sent out Tuesday afternoon, Stothert said she doesn’t support Huse’s decision, “although I recognize she has the authority to do so under City Code. I am disappointed she is proceeding with such an impactful decision for all Omaha citizens without my support or the full support of the City Council, as she previously said she would.”

The previous mask mandate in Omaha was implemented in 2020 before the availability of an effective vaccine, Stothert said.

She noted that an order regarding the mandate signed by Huse “cannot be voided by the Mayor or the City Council.”

Omaha City Council President Pete Festersen on Tuesday issued a statement in support of Huse’s plan. He said the majority of the seven-member council supports her decision to implement a temporary mask mandate in Omaha “to help address the surge of COVID-19 cases and to help keep our schools, hospitals and first responders operating during this challenging time.”

Ricketts, however, said in a statement, “I remain adamantly opposed to mask mandates for Nebraskans, and I support Mayor (Jean) Stothert’s priorities to reasonably manage the spread of COVID-19 in Omaha. The Douglas County Health Department lacks legal authority to impose a mandate, and I have asked Attorney General Peterson to consider legal action.”

The question of legal authority is complicated and contested. State authorities have said the Douglas County health director couldn’t issue such an order for the county without approval from the Nebraska Department of Health and Human Services under state law. Huse in August had requested the state’s approval for a countywide mask mandate, and that request was denied.

But now, she is limiting the mask mandate to within Omaha’s city limits. She said the authority comes from City of Omaha code under which the Douglas County department director also acts as the health director for the city.

“I have spoken to both the city attorney and the county attorney that represents our office and both feel that we are on solid footing legally,” Huse said.

The Nebraska attorney general disagrees. In his letter Tuesday, Peterson told Huse that she doesn’t have the authority to issue such a directed health measure (DHM) without state approval.

“If the Douglas County Board of Health proceeds with its intention to issue a mask mandate DHM for the City of Omaha, the Attorney General currently plans to file suit seeking to have the DHM declared invalid and to enjoin the mask mandate from being enforced,” Peterson wrote to Huse.

City Council members Aimee Melton, Brinker Harding and Don Rowe also issued a statement Tuesday afternoon, saying they “strongly disagree with Douglas County Health Director Huse’s dictate forcing a mask mandate” in Omaha. Over the last two years, the statement reads, “we have seen time and again that mask mandates are not an effective method for combating the coronavirus.”

The three, all of whom are Republicans, also said they “vehemently object to an unelected and unaccountable bureaucrat imposing their will upon the city without reaching out to those who are entrusted by the citizens of Omaha to represent them.”

Projections indicate the Omaha metro area could need at least 40% more hospital capacity in the next few weeks to accommodate the anticipated increase in people becoming ill enough with COVID to require hospital care. While the omicron variant of the coronavirus is considered milder than the delta variant, health officials expect omicron’s easy transmission to cause so many more cases that it will land more people in hospitals.

“I can’t stand by and know that I could have done more and didn’t do more,” Huse said.

Under Omaha city code, the Douglas County health director can issue orders in public health emergencies.

One section of the city code says the health director “shall have the authority to adopt such rules and regulations, restrictions or measures as he shall deem necessary to protect the public health of the city.”

Another section, labeled “authority at threat of epidemic,” says it shall be the duty of the health director, when the city is afflicted with or threatened by an epidemic of contagious disease, to issue orders for the prevention, removal or limiting of such diseases.

Festersen wrote that council members believe Huse “clearly has this authority and we will continue to support the resources needed to increase testing and vaccination rates in our community.”

It’s unclear how the mandate will be enforced. Huse indicated it would be complaint-driven and said it would be a collaborative effort between the Health Department and law enforcement agencies.

“Basically, any complaints of businesses that might not be complying, of public spaces where compliance is not happening,” Huse said. “If there are repeated offenses, then local law enforcement can be involved.”

According to the order, violating the order would be a misdemeanor offense with a fine of up to $500 and up to six months in jail.

Huse appealed to people to comply with the mask mandate for the good of the community.

“My hope is that the people that I know to be Nebraskans, the kindness, the neighborliness of the people who live in this state ... I’m really relying on people to do the right thing and to really help their neighbors,” Huse said.


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Julie Anderson is a medical reporter for The World-Herald. She covers health care and health care trends and developments, including hospitals, research and treatments. Follow her on Twitter @JulieAnderson41. Phone: 402-444-1066.

Chris Burbach covers the Douglas County Board, Planning Board and other local government bodies, as well as local neighborhood issues. Follow him on Twitter @chrisburbach. Phone: 402-444-1057.

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