A Big Island state senator was the lone dissenting vote in the Ways and Means Committee on a controversial measure that would give the state health director sweeping powers to declare a public health emergency and, with authorization of the governor, to screen, test and monitor travelers.
Sen. Kai Kahele of Hilo, a candidate for the U.S. House seat being vacated by Rep. Tulsi Gabbard, cast his no vote during a Thursday hearing, expressing “major concerns about the … sweeping powers that this bill will be giving to the state director of health and questions about privacy and civil liberties and constitutionality.”
House Bill 2501, House Draft 1, Senate Draft 1, is a gut-and-replace measure prepared for the current truncated legislative session. The bill mentions COVID-19 in its opening sentence, saying the pandemic “demonstrates the need for preparation, flexibility and quick action in the face of ongoing or new risks presented by outbreaks of communicable or dangerous diseases in the state or in other parts of the world.”
“I would like to hear from the governor, himself, why we need to pass this bill right now, without giving the public the full opportunity to testify on this in both chambers, and that he does have within his authority under (Hawaii Revised Statutes, Section 127A) the power to do everything this bill is asking him to do, and that we are doing right now,” Kahele said.
Kahele noted he might change his vote on the Senate floor if convinced by Gov. David Ige “that this bill is absolutely necessary to happen during this session.”
The bill, with amendments recommended by the state attorney general, cleared the powerful money committee. Voting aye were Chairman Donovan Dela Cruz and Vice Chairman Gilbert Keith-Agaran, plus Sens. Lorraine Inouye, Kalani English, Sharon Moriwaki, Michelle Kidani, Maile Shimabukuro and Brian Taniguchi. Voting aye with reservations were Sen. Dru Kanuha of Kona, plus Oahu Sens. Gil Riviere and Kurt Fevella, the latter the lone Senate Republican.
It now goes back to the full Senate for a third reading.
The legislation would also “establish penalties to address individuals who are uncooperative or seek to evade the screening process,” and “allow the Department of Health take certain actions upon completion of traveler screening, including testing, investigating, monitoring, quarantining and isolating travelers, as determined necessary by the director of health to protect the public health and safety.” The bill would establish a screening special fund, but those ordered to quarantine or isolate would do so on their own expense.
The bill also has a provision for an individual to contest quarantine or isolation via a court hearing, which would take place within 10 days of request — but the petitioner would remain in quarantine or isolation pending the hearing date.
Should the bill become law, those convicted of noncompliance would be guilty of a misdemeanor.
Concerns about the broadening of the definition of telehealth by the governor and the inclusion of the broadened provision in the bill were the subject of written testimony by the state Insurance Commissioner, the Department of Human Services, The Queen’s Health System, HMSA and Hawaii Primary Care Association.
HPCA mentioned two recent civil suits seeking an injunction to lift Ige’s COVID-19 emergency declaration, saying “if successful, the courts could conceivably stop emergency actions in their entirety.”
“Should that happen, the suspension on the statutory provision prohibiting telephonic services under telehealth would cease and the Department of Human Services would no longer be able to allow Medicaid coverage for telehealth services provided by telephone,” HPCA wrote.
The Queen’s Health System expressed its concern “that a blanket adoption of audio-only as a modality equivalent to in-person care for telehealth would have unintended consequences on the quality and level of care provided to our community.”
The measure generated 746 pages of written testimony prior to the hearing, with an overwhelming majority in opposition.
Kauai County Councilwoman Felicia Cowden wrote she supports “the need for legislation that provides a clear pathway for managing infectious diseases.” Cowden added she opposes granting “such unquestionable authority to a non-elected official, even with the governor’s approval, for such extensive and intrusive intervention into the health and well-being of the citizens.”
Cowden said the legislation’s “broad wording … creates the policy environment for intrusion on civil liberties.”
“This 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 live ‘wherever necessary,’” she wrote.
Grassroot Institute of Hawaii, a conservative think-tank, expressed “grave concerns,” calling the “powers contemplated in this bill … so sweeping and broad as to raise significant questions about privacy, civil liberties and constitutionality.”
“Of particular concern is the bill’s broad permissions regarding screening/tracking technology and how collection, sharing and disclosure of personal information will be handled.”
The group Hawaii for Informed Consent, known primarily for its opposition to mandatory vaccinations, said the bill “raises serious questions about a power hungry DOH’s desire to brazenly disregard individual liberties, economic freedom and accountability to the people of Hawaii.”
Among a laundry list of questions in the group’s written testimony are: “What is treatment and will it be recommended or forced?” and “Would entire planeloads of passengers be quarantined, at their own expense, because someone on board develops a fever mid-flight?”
The group also questioned if the government will isolate children who test positive and the fate of children whose parents test positive.
Email John Burnett at jburnett@hawaiitribune-herald.com.