2020 Leg Session, Business/Economy, Castle Rock, Coronavirus, Exclusives, Featured, Governor Polis, Legal, Original Report, Politics, Scott Weiser

State health agency plans new strategy for COVID restrictions; parts of economy to stay in idle

DENVER–The Colorado Department of Public Health and Environment (CDPHE) announced on August 28 that it is developing a new procedure to determine when and how COVID-19 restrictions would be imposed on Colorado counties. Parts of that plan would keep portions of the state’s economy at idle speed for the foreseeable future.

On Monday, CDPHE put up posts on Facebook and Twitter soliciting comments from the public on their draft of the new procedure.

CDPHE says it is “seeking feedback on a new matrix to help identify when counties should be in the Protect Our Neighbors, Safer at Home, and Stay at Home levels. Once implemented, this will streamline the process of moving through different levels, when counties qualify based on their objective, scientific metrics.” CDPHE says, “The final guidelines will be available shortly after the comment period.”

The deadline for submitting feedback through their online-only response form is September 3, at 12:00 p.m.

Rep. Patrick Neville, R-Castle Rock, in an interview Monday with Complete Colorado said, “We’re at what, five months now? The average person supposed to read through all this and comprehend it and develop their own feedback and get this back by 12 p.m. on the third? Crazy. It’s comical.”

One of the parts of the CDPHE matrix Neville is very concerned about is the inordinate delay in allowing counties to reopen fully.

CDPHE is proposing to keep 16 categories of public venues at reduced capacity for nearly a year.

“For a county to get back to 100%, even if they don’t have a single COVID-19 case, it would take 10 months to get back to full economic capacity,” said Neville. “And this comes on the heels of us getting news today that our unemployment insurance fund is insolvent.”

The lowest level of the new five-level matrix is called “Protect Our Neighbors,” and is available to counties that have zero to 25 new cases per 100,000 people over a two-week period, a “positivity rate” of 5% or less and that also meet “all 8” of the matrix’s Protect Our Neighbors (PON) metrics, of which the information provided only lists six.

At the lowest level the list of occupancy restrictions in 16 categories of use begin at 50% occupancy and a maximum of 500 people.

A footnote on the table says, “Protect Our Neighbors starts at 50%. Every 4 weeks the status is maintained, a county may increase capacity by 5%.”

Neville has been trying for months to pull the reins on Governor Polis and his authority to act without legislative oversight and to get the decision making on COVID19 response back in the hands of the state legislature.

The problem arose in 2012, when the legislature passed the Colorado Emergency Declaration Act, which vastly increased the Governor’s powers, especially over epidemics and public health emergencies.

“It abdicated the Colorado Legislature’s responsibility, once an emergency is declared, to the Governor,” said Neville.

That, he says, violates the state Constitution.

“Our state Constitution says that we have three separate branches of government and Article Three clearly states that it forbids any of those branches from abdicating that role to a different branch,” said Neville. “He’s really made himself King Polis by becoming the Legislature and the Executive branch in one.”

Neville argues that Polis’ decisions during the COVID-19 pandemic have not been well thought out.

“It seems like we get a new model every two weeks from the governor’s office. We have not gotten any clear lines on what metrics he’s actually trying to meet since the start of the pandemic,” said Neville. “It was all about making sure that we don’t overwhelm our hospital system. We clearly haven’t. In fact, the hospital system started to go bankrupt because they have lost so many elective procedures. And some of those I would even argue weren’t elective. No mammograms, no preventative medicine screenings for an elective surgery that could actually save lives. I think we probably actually cost lives through some of his policies, but it seems like the goals change every week and something new comes up, depending on whichever way the wind blows that day, and the Governor changes his mind.”

Neville believes the legislature is better equipped to scrutinize the Governor’s polices and examine the evidence behind them and decide what is best for Coloradans.

“We can get good input from the public, go through three different readings, get 100 different legislators’ opinions on this and actually delve into this topic in a more thorough way, rather than just taking Governor Polis’ word for it,” Neville said.

Neville is so convinced Polis has overstepped his bounds that he is suing the Governor in District Court. His first emergency petition for original jurisdiction review by the Colorado Supreme Court was turned down Friday, but this just means the case reverts to the standard process in the courts.

This, however, means that the case could be in court for a very long time.

“It could be very long; it could be months. It could be years. We’ll continue to pursue it because we think this is a question that needs to be answered,” said Neville. “Quite frankly, my concern is the same thing could happen under a Republican governor, and I don’t think Republican governor should have that authority either.”

Update: Here are replies from CDPHE to questions asked for this article that came in after publication:

Q: When did the project start?

A: We have consistently been working on strategies to help counties ease restrictions while still protecting public health. It began with our variance request program. Our efforts have evolved as we have received feedback from counties.

Q: Dates and locations of meetings with stakeholders. A list of individuals CDPHE met with as stakeholders and who they represented, how the notice of meetings were published to the public, whether the public was invited to attend the meetings.

A: CDPHE and the Governor’s Office developed this draft with a working group of representatives from local public health agencies, county commissioners, city managers, businesses, and healthcare providers. We have had — and will continue to have — additional conversations with trade groups, chambers of commerce, local governments, health care providers, public health experts, non profit organizations and larger groups like Counties and Commissioners Acting Together (CCAT), the Colorado Municipal League, Chambers of Commerce and the Economic Development Council of Colorado.

Q: How long CDPHE worked on the draft before announcing it to the public on the 28th.

A: Approximately one month.

Q: Why does the “protect our neighbors” level take 10 months to return occupancy to 100% after the virus spread meets the lowest standard?

A: We still are learning about how this virus spreads and behaves, and we need to evaluate how things could change as we enter flu season. We also can speed up the process to ease restrictions if it’s safe and warranted, but we wanted to provide a matrix based on the latest evidence and modeling projections

Q: Why there is no matrix solution that includes a “no restrictions” metric.

A: When we get to a place where no restrictions are necessary, we will no longer need a matrix.


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