Missouri AG Schmitt refused health director’s request to defend disease control rules

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Missouri Attorney General Eric Schmitt’s office refused a request by the state’s health director to appeal a court ruling stripping powers from health agencies across the state to enact infectious disease control measures.

The ruling last week by Cole County Circuit Judge Daniel Green declared unconstitutional a Department of Health and Senior Services rule that allows local public health agencies to issue orders to control the spread of disease. Green said the department did not have the authority to “permit naked lawmaking by bureaucrats across Missouri.

Many of these rules enacted during COVID-19, such as mask mandates and business capacity restrictions, have already been lifted. But Green also barred local health agencies from making any future rules — including quarantine requirements for school children. The department’s rules delegating power to local health agencies date back decades and cover numerous other infectious diseases.

DHSS was struggling to interpret the ruling and its future implications, director Don Kauerauf indicated in a Tuesday letter to local health authorities.

On Thursday, DHSS spokeswoman Lisa Cox confirmed Kauerauf had asked Schmitt’s office, which represented the state in the court case, to appeal Green’s ruling but that the attorney general refused. The refusal was first reported by the Missouri Independent.

“There are no plans to appeal using internal or outside counsel,” Cox wrote in an email.

Schmitt’s spokesman Chris Nuelle had previously indicated the state would not appeal, but Kauerauf wrote to local health directors that he was hoping to hear from the attorney general directly.

“We have informed DHSS that we will not appeal or take any further action in this case, and that they should begin enforcement efforts immediately,” Nuelle said in an email Thursday.

Schmitt, who is running for U.S. Senate, has sued cities and school districts to overturn local mask mandates as Missouri responded to the proliferation of the COVID Delta variant this year.

Green’s ruling “has a significant effect on how public health officials will conduct public health matters,” Kauerauf wrote in his letter, noting that it limited local health agencies’ abilities to order isolation and quarantines, but that the department is still confused about the exact implications.

He suggested local health departments seek advice from their own lawyers.

Lawmakers this year also targeted public health orders by requiring they be approved by city and county councils first. Kauerauf, who started leading the health department in September, said earlier this year that law “haunts” him and that he worried about eroding trust in public health officials.

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