Board of Health Discusses Path Forward: Approves Requiring Masks In Public Buildings

health Department

The Board of Health, which is authorized to chart its own course, met for the first time since deciding to follow the Law Director’s suggestion that they yield that right in order to follow the Tennessee Plan. In the subsequent two weeks, Knox County’s new case numbers have spiked and increases have been experienced in both active cases and hospitalizations.

Dr. Gotcher called the meeting to order. Mr. Morton, representing the Law Director’s office, objected to items in the minutes, saying they normally would not include discussion notes, etc. He also said there were two errors, saying the Law Director’s office director’s office was not involved in developing stay at home orders. Dr. Buchanan contested that assertion. The Law Director’s office also objected to the notion that a change caused the Board of Health to take over leadership, saying that was what should have happened from the beginning.

It was an exchange over simply passing the minutes that set the tone for the night.

Dr. Buchanan reviewed the numbers presented earlier in the day, but added that thirty new cases had already been received in the afternoon and they expect tomorrow’s numbers to be higher. She noted that growth was 55% in new cases in one week. She explained why the related benchmark is red. She said there is some concern around testing and having adequate testing supplies.

She said contact tracing has gone well, but pointed out increases in COVID-positive hospital patients, ICU patients and ventilator patients. She said they are concerned about the increase, but capacity remains good and she expects this trend to continue as cases rise.

Mayor Jacobs asked if we know the number of tests given and positive percentages. Charity Menefee said the state tracks those numbers, but they use those numbers and anecdotal local information from providers. She said the percent positive is increasing, indicating community spread, and that the increases are not due to increased testing.

He also asked about the average length of stay of COVID-19 patients in the hospital and whether that has changed. Dr. Shamiyeh said it is about 7 days for most patients and said the bulk of the data is recent majority of the patients have come in the last seven-to-ten days. He said that he feels hospitalizations are a great metric, because it is clearly countable. Dr. Buchanan added that just over half have been over 75, with half under that, and that parallels national trends.

Dr. Shamiyeh said the local hospital systems have been working cooperatively and the surge plan is solid, but it was developed in the context in March of elective surgeries being canceled. He said elective surgeries are back and those beds are filled. At that time emergency room departments were greatly reduced, but now that has returned to normal and pent up demand is back. Surging now, he said, the surge capacity would not be the same. Very deep into the surge capacity, care would be impacted. Hospitals are safe and in good shape, but the rate of rise is a concern and “has caught our attention.”

Dr. Gotcher asked if non-essential surgeries could be delayed given the rise in cases. Dr. Shamiyeh said they certainly don’t wish to do that and hope it can be avoided.

Dr. Bryan pointed out that the big picture of the metrics is important to make good decisions. He noted that in the governor’s comments today, three times expressed concern about the metro Knoxville area. He said he was grateful for the 225 emails he got this week from the public, and many asked why we could not have continued the phased plan.

Dr. Buchanan said the two are not terribly different. She said both are guides for reopening and that the benchmarks, which the board voted to continue consulting, were to help determine movement between the phases. She said we’d hoped to move to phase three by now, before the numbers got worse. She said using the TN pledge, put all area counties on the same plan.

Dr. O’Brien said he was comfortable either way, but noted the capacity of the board to add items. Dr. Buchanan added that the information regarding when to move forward or backward were more clear under the local plan.

Dr. Shamiyeh said he’d read the emails and that the state plan can be confusing. He said moving forward is really more nuanced than plans might suggest. He said the focus of the Board might be more on actions.

Dr. O’Brien said a hybrid based on science might be best. He suggested a public health order requiring face masks for age 12 and above when indoors in public spaces other than churches and government buildings. He presented a prepared order he’d prepared with the help of lawyers and others.

He said business owners are concerned because customers are not wearing masks or keeping distance and their employees are being jeopardized. He said he doesn’t want our community to be like some of the other cities in the state. He said the science supports the move and he is seeing too many people not observing appropriate measures. It was presented as a motion and seconded.

Mayor Jacobs asked how it would be enforced. Dr. O’Brien said it would be a class C misdemeanor, as required by state statute for any health directive, but the warning would be to hand them a mask. He said he is working on getting 10s of thousands of masks for the purpose.

Mr. Morton said their decisions should be based on science, not politics. (It was not clear to me what he was referencing regarding politics.) He said anything beyond what the governor said leaves the county liable. He said the governor has made it clear that this is a medical emergency, but only an immediate problem with hospital capacity constitutes an emergency (this was challenged later and he never made clear where he determined that was the only thing that could be considered an emergency.) He said this could bankrupt the county if they “take away people’s legal rights.”

Dr. O’Brien said he had spoken to many attorneys across the state and that it is incumbent upon the board to follow the science. He said if we don’t do something now, something worse could easily happen, and that we’ve been blessed and he wants to keep it that way. He said he’s not proposing anyone be jailed.

Mr. Morton said the governor does not require face masks and doing so jeopardizes the county locally. Dr. O’Brien said the governor just said this afternoon that locales may be given the right to require masks.

Dr. Shamiyeh said that the governor has spoken affirmatively about Knox County’s right to do so. He pointed out that requiring masks today helps us in three weeks to have fewer cases and six weeks to have fewer hospitalizations. He also noted that while the studies on masks are recent, the evidence suggests that anything reducing droplets helps prevent spread. He said he is completely supportive of the use of masks based on science. He said the employees wearing masks are put at risk by others and this gives business owners the cover to say customers must wear masks.

Mayor Jacobs asked how many times masks must be changed daily. Dr. Shamiyeh said he washes his once a day. Mayor Jacobs asked if the masks were to prevent asymptomatic spread. He was told it is to prevent any spread. Dr. O’Brien said if we just let go and let people get the disease, we would have about 8,000 people in Knox County die and hospitals would be overrun.

Mr. Morton was asked by Gotcher whether the governor hasn’t said we could go beyond his orders. Mr. Morton said they could, but the Law Director didn’t advise it. Asked if there had been any legal ramifications in Nashville, he said, “I have no doubt.” Mr. Morton said you can’t make it a misdemeanor class c unless hospitals are being overrun to prove there was a rational basis to do so. Dr. Buchanan asked if a pandemic wasn’t enough justification. She said had not seen anything to indicate hospitals being overrun was the only criteria.

The point was made that smoking indoors is illegal, but citations are not issued. It simply gives the business owners the authority to say it is an ordinance. Mr. Morton was asked if leaving out any mention of a penalty would make it more palatable. He repeated they should not go past what the governor said. He said it must be based on science and, that, only on hospital capacity issues.

Dr. Souza said it must have teeth or it is irrelevant. Lisa Wagoner asked to remove public schools from the order, which was subsequently agreed to on the basis that the Department of Education has authority there.

Dr. Shimiyeh said you don’t have 100% compliance to help reduce transmission, but that an enforcement piece probably helps get to that point.

Mr. Morton repeatedly asserted it was unconstitutional in “a number of ways.” He said there is no rational basis as there is no issue with medical facilities. He said it is unconstitutional as it defines churches as “tax exempt,” which isn’t always true and it infringes on the right of free worship. He said it is so vague no one knows what is prohibited. He said requiring it in homes is illegal (Ed. Note: The document said “public buildings”). He said the city of Knoxville and Farragut have no legal rights in this issue and should not have been consulted.

Dr. Gotcher asked Mr. Morton if it was acceptable that employees must regulate employees. Mr. Morton said that wasn’t acceptable. Dr. Buchanan said its the kind of thing they do all the time as a health department. Dr. O’Brien said that no one was ceding authority to the cities, their input was solicited.

Dr. Gotcher asked if time was critical. Dr. Buchanan said, “yes.” She noted that people are not following mask wearing as a suggestion and they are seeing it consistently among people who test positive.

Everyone voted to require masks in public buildings with the exception of Mayor Jacobs, who voted no.

Discussion was briefly held about plans, but the consensus was to continue the state plan and intervene in specific ways as needed (like requiring masks). A question was asked about contact tracing and whether it will continue to be practical. Charity Menefee said they feel confident at this time. The next meeting will be in two weeks unless an emergency meeting is required.

The public health order will go into effect on Friday.