State sues to block Omaha mask mandate as virus cases soar
OMAHA, Neb. (AP) — The state of Nebraska has gone to court to block Omaha’s new mask mandate even though the number of virus cases has risen dramatically this month as the highly contagious omicron variant spreads.
The Nebraska Attorney General’s office said Thursday that it filed its lawsuit late Wednesday and asked for an immediate hearing. The state argues that Douglas County Health Director Lindsay Huse doesn’t have the authority to issue a mask mandate unless the state approves it beforehand, and the state Department of Health and Human Services has rejected her previous requests.
Republican Gov. Pete Ricketts reiterated his opposition to any mask mandates in response to the new Omaha rule, and he praised the lawsuit in a statement Thursday.
“Abuse of power like this undermines trust in our nation’s pandemic response,” Ricketts said. “It’s dismaying to see Douglas County’s Health Director sidestep the proper legal channels and overreach her authority. ”
But a hearing on the lawsuit won’t be held until Jan. 24, so masks will be required in Omaha at least until then.
Huse said Tuesday that she believes she is on solid legal ground in issuing the mandate under the powers granted to her by city code. She said the rule is needed because of the recent “astronomical spike in cases” that is filling up hospitals.
Huse and Omaha’s city attorney didn’t immediately respond Thursday after the lawsuit was announced, but Mayor Jean Stothert and the city council president have both said they believe the health director has the authority to impose the mandate even though Stothert opposes it.
The seven-day rolling average of daily new cases in Nebraska has risen over the past two weeks from 892.14 new cases per day on Dec. 28 to 3,161.57 new cases per day on Tuesday.
The state set a record last week when it reported 17,382 virus cases to the federal Centers for Disease Control and Prevention, which was up from 10,682 the week before that and 4,956 the previous week. By Tuesday, the state had already reported 11,333 cases this week.
The number of people hospitalized with the virus statewide grew to 662 on Wednesday. The state estimated Thursday that 20% of the hospital beds across Nebraska remain available but capacity is more limited in Omaha, where only 11% of the beds were free. Hospital officials have said they are close to their limits because they are treating so many non-COVID patients, and the number of virus hospitalizations may double over the next couple weeks.
One of the state’s preeminent hospitals, Nebraska Medicine, said Thursday that it would start using its crisis plan to ration care and preserve hospital capacity because hospitalizations are growing quickly at the same time roughly 400 of its 10,000 employees are out sick. Officials said the number of staff illnesses they are seeing has increased tenfold in recent weeks.
As part of that plan, some clinic appointments may be rescheduled, fewer testing appointments will be available and surgeries and transfers from other hospitals will be further restricted. The Omaha hospital and network of clinics might even use conference rooms and classrooms for some low-level patient care and pause some clinical trials.
“Nebraska Medicine is doing its absolute best to preserve a high quality of care for any patient that is seeking care of this organization,” infectious disease Dr. Kelly Cawcutt said. “We really want you to have faith that we are making every change possible that we can to do that and to serve this community in the best possible way we can given the current omicron surge and the impact it is having.”
Nebraska Hospital Association spokesman Brian Noonan said all the state’s hospitals “are currently experiencing challenges, to varying degrees, with skyrocketing COVID-19 numbers in our communities.” But it is up to each hospital to decide whether to start using its crisis care plan.
The head of one of the region’s largest hospital chains, CHI Health, said her facilities haven’t yet invoked crisis standards but they are struggling to deal with the latest virus surge. The chain currently has 379 employees either out sick with COVID-19 or quarantining.
“Our 14 hospitals in Nebraska and southwest Iowa are stretched thin, but our staff continue to provide heroic care to the communities we serve,” CHI Health’s interim CEO Jeanette Wojtalewicz said.
Another major hospital group based in Lincoln, Bryan Health, said it has been using elements of its crisis plan to deal with the surge in cases, including reassigning staff to help with patient care and limiting elective procedures and transfers.
“Our hospital and others across the state are severely taxed. We are seeing accelerating numbers of COVID-19 infections and hospitalizations as the omicron variant spreads unyieldingly across our state,” Bryan Health said in a statement.
Doctors reiterated Thursday the importance of getting vaccinated against the virus and wearing a mask in public regardless of whether Omaha’s new mandate survives the court challenge.
The Omaha mask order will be reviewed every few weeks and it would be lifted if virus case counts and hospital capacity improve significantly, but currently the county is reporting an average of 1,585 new cases per 100,000 people over the past week and that number would have to be below 200 before health officials would consider dropping the mandate.