A bill that would have delegated more COVID-19 response and screening oversight to the Department of Health during the COVID-19 pandemic and any future public health emergency has stalled amid disagreement between the House and Senate and significant public opposition.

The bill’s authors say it was intended to provide legal backing for Hawaii’s COVID-19 traveler screening program even if the governor has not declared a state of emergency. Such a legal framework may have offered protection for the state if the screening protocol faces future challenges in court, especially as Hawaii ramps up its screening processes for travelers as it reopens its economy. Last week, a federal judge let Hawaii’s 14-day quarantine policy stand.

House Bill 2502 would have allocated $5.2 million for COVID-19 response through December and given $5 million in grants to hotels for employee testing from the Governor’s Discretionary Fund. It also included an appropriation of $18 million from the Transient Accommodations Tax to operate screening programs through June. Those provisions are now up in the air.

Right, Senator Laura Thielen shares a conversation with left, Les Ihara. Background left, Senator Kurt Fevella chats with Senator Gil Riviere before the floor session begins at the Capitol. July 6, 2020

The Hawaii House of Representatives disagreed to the Senate’s latest version of a bill that would have clarified the health department’s legal authority to conduct COVID-19 screening, particularly of travelers.

Cory Lum/Civil Beat

On Monday, protester chants of “kill the bill” came from the rotunda as the bill cleared the Senate in a 20-4 vote in favor of the bill. 

But the Senate’s amended version was rejected by the House on Wednesday.

Sen. Roz Baker told Civil Beat the legislation originated as a request from the Hawaii Attorney General. The AG’s office cited a need for the legal framework to enforce new policies such as the health travel form that is required currently for travelers who enter Hawaii’s borders during its COVID-19 state of emergency. The AG did not return a request for comment.

The bill outlines how the department may enforce various types of screening, such as temperature checks and collection of travelers’ health, lodging and contact information — the type of details that the Department of Health’s contact tracers may need as they track the virus. The bill would have codified a fine of $5,000 for noncompliance.

Screening Visitors

Hawaii is already screening visitors, but many more are expected if the state continues with its plan to offer a quarantine bypass option starting Aug. 1 for travelers with negative molecular-based COVID-19 test results. The current screening already underway at Hawaii’s airports, such as temperature checks and the collection of health forms has been enacted via the governor’s emergency powers.  

“Screening, investigating, monitoring, quarantining, isolating, data-sharing and other actions” are named by the bill’s authors as necessary in the name of protecting public health and safety.

But the legislators and members of the public who testified against the bill say it would violate civil liberties of free movement and privacy.

Baker, the chair of the Senate Commerce, Consumer Protection and Health Committee who introduced the bill, said concerns expressed in testimony and by the protesters on Monday have either been addressed through modifications made to the bill or are unrelated to its content. An earlier version of the bill shifted some authority directly to the acting DOH director, but was later amended to mandate the governor sign off on any DOH proposals.

“This is an attempt to make sure we’re on solid footing when we start to get more visitors, that we have a way of making sure that we catch any folks that may be coming in, making sure they don’t have a temperature and we know how to get ahold of them if something comes up,” she said. “That’s what the Attorney General was very concerned about: that there be legal underpinning for the action, so it was clear who was responsible.”

Department of Health Director Dr. Bruce Anderson gestures during a press conference announcing a spike of 41 new cases of COVID-19. July 7, 2020

The bill would have authorized Department of Health Director Bruce Anderson to declare emergencies to codify public health responses like traveler screening.

Cory Lum/Civil Beat

Baker said those types of actions are necessary to implement to mitigate the spread of disease during a pandemic, and the bill in its current version does not strip any executive power from the Hawaii governor.

“It was to provide a legal underpinning for what the administration believed were inherent powers, but because this is probably not going to be a one-time deal,” she said of the current pandemic and possibility for future public health crises. To address concerns voiced in testimony against the bill about civil liberties and constitutional rights, Baker said a section was added to the bill to clarify people could contest quarantine and isolation within seven days upon receiving such orders.

“It talks about fines if people don’t comply, but it also says that if somebody believes they are being unfairly isolated or quarantined that they have a right to contest and that goes directly to circuit court,” she said.

Sen. Kurt Fevella, the lone Republican who also sat on the Senate committee that first heard the AG’s proposal, said Monday he worried that it gave the DOH director too much power.

Sen. Russell Ruderman, who voted against the bill, said that he didn’t necessarily oppose the substance of the bill, rather he opposed how it was passed “anti-democratically” because it was a gut-and-replace bill and failed to address the concerns of more than 1,000 people who submitted testimony in opposition. The collection of some traveler information could potentially violate peoples’ privacy, he said.

“Many of those rules have to do with where have you been, who were you with, can I see your medical records? I’m not saying the bill does that, but that’s the concern people have,” he said.

Mufi Hannemann, Honolulu mayoral candidate and president of the Hawaii Lodging & Tourism Association, had testified in support. 

“We are cognizant of the need for a comprehensive screening program if we are to reestablish trans-Pacific travel and believe that the funding provided through this legislation will bring us one step closer to reopening,” he wrote.

The Hawaii Primary Care Association called it a “vital component for the safe opening of our borders during this unprecedented crisis.”

Those who opposed included a variety of organizations and Felicia Cowden, a Kauai County Council member.

“The broad wording in this proposal creates the policy environment for intrusion on civil liberties,” Cowden wrote. “The Bill gives this director police powers to separate families, confinement against individual will for undetermined length, and vaguely defined powers such as ‘take other actions’ and phrases like ‘wherever necessary.'”

Joe Kent, the executive vice president of the Grassroot Institute of Hawaii, called the bill premature and said the state’s emergency management statute already gave the Hawaii governor power to delegate authority to other individuals such as the health department director during emergencies.

The group Hawaii For Informed Consent, which led a social media campaign against it, said it would have provided “sweeping power to an unelected official.”

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