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Health director issues mask mandate for Omaha; governor calls for ‘legal action’

Nebraska Attorney General says he plans to file a lawsuit; City Attorney says code grants Dr. Huse authority
Douglas County Health Director Dr. Lindsay Huse told the county's Board of Commissioners on...
Douglas County Health Director Dr. Lindsay Huse told the county's Board of Commissioners on Tuesday, Jan. 11, 2022, that she intends to implement a mask mandate for the city of Omaha effective at midnight.
Published: Jan. 11, 2022 at 11:14 AM CST|Updated: Jan. 11, 2022 at 12:44 PM CST
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OMAHA, Neb. (WOWT) - Dr. Lindsay Huse on Tuesday issued a temporary indoor mask mandate for the City of Omaha, effective at 12:01 a.m. Wednesday.

Also on Tuesday, Nebraska Attorney General Doug Peterson sent a letter to the Douglas County health director announcing his attention to “file a lawsuit seeking to have the DHM declared invalid” and prevent the mandate from being enforced, saying Dr. Huse did not obtain permission from the state Department of Health and Human Services to issue the mandate.

“You previously request DHHS approval for a similar mask mandate DHM on August 24, 2021, which DHHS denied. At that time, you were informed that should the Douglas County Board of Health attempt to enforce a DHM without state approval, the Attorney General may challenge that action,” Peterson’s letter says.

The Douglas County health director announced her intent to declare the mandate at the county commissioners’ meeting Tuesday morning, citing City Code Chapter 12, Sections 1, 21, 23, and 24, granting her authority to order such a mandate for the City of Omaha.

After finalizing some legal details, Dr. Huse announced the mandate alongside Douglas County Commissioner Chris Rodgers, who is also president of the county’s Board of Health. Councilman Pete Festersen issued a statement earlier Tuesday, stating that the majority of the Omaha City Council was in support of Dr. Huse’s decision to implement a mask mandate.

“We believe Dr. Huse clearly has this authority, and we will continue to support the resources needed to increase testing and vaccination rates in our community,” according to a statement Festersen sent on behalf of the council.

Nebraska Gov. Pete Ricketts restated his opposition to mask mandates in a tweet Tuesday afternoon, saying Dr. Huse lacked the authority to declare such a mandate and state that he had asked Peterson to look into the matter.

The governor wore a mask to his news conference on Monday after he was exposed to someone who tested positive for COVID-19, and because “he has elected to follow current CDC guidelines and is wearing a mask when around others,” his staff told 6 News.

But Omaha City Attorney Matt Kuhse said the city’s code supports Dr. Huse’s authority.

“It is the position of the Law Department that Dr. Huse is acting pursuant to her authority as the City’s Health Director under sections 12-23 and 12-24 of the Omaha Code. Those sections give Dr. Huse the ability to enter an order, such as the one she intends to announce today,” he said in an email to 6 News ahead of the news conference.

The city’s COVID-19 Prevention order issued by Dr. Huse calls for face coverings be required for anyone ages 5 and older and six feet of separation from others not in the same household, with some exceptions:

  • Those seeking federal, state, city, municipal, or county government services
  • Anyone seated at a bar or restaurant to eat or drink, or while immediately consuming food or beverages
  • Those engaged in exercise
  • Anyone working in an occupation that prevents wearing masks
  • Those obtaining services or purchasing goods or services that require temporary removal of masks
  • Anyone giving a speech, lecture, or broadcast, or officiating at a religious service, to an audience, which must maintaining six feet of social distancing
  • Those participating in a religious service
  • Anyone who cannot wear a face covering because of a medical condition, mental health condition, or disability that prevents the wearing of a face covering
  • Those younger than age 5

Earlier on Tuesday, Dr. Huse gave her first public report of the new year — and since the omicron variant moved swiftly into the state — at the regular meeting Tuesday morning, stating that most cases the county has been sequencing, amid a pandemic-high local positivity of 30%, are omicron cases.

While omicron does seem to be holding up to its “less severe” reputation, the sheer volume of those who will likely be affected — and the likely impact on local hospital systems — is concerning, she said.

“We’re not doing everything that we can to help contain this astronomical spike in cases. We are encouraging personal responsibility. We are encouraging accountability. We are educating people every single day on how to prevent this,” Dr. Huse said, noting that she sees maybe 10% choosing to wear a mask.

She also expressed concern about the number of residents refusing to vaccinate, especially as projections show 40% more patient capacity will be needed in the coming weeks, at minimum.

“I can’t stand by and not do everything that we can. My integrity as a health professional, as a public health professional, cannot stand by and watch that happen. I can’t watch — and our hospitals can’t handle — a huge surge of more omicron cases,” she said.

Dr. Huse said she is hoping a mask mandate will help non-COVID patients get the care they need, care that has been put on the backburner because of COVID-19.

“We need to think about the fact that those individuals, through no fault of their own, now cannot get in to get their cancer surgery or their hip replacement or the other treatments that they need to also live a healthy and a happy life,” she said.

The health department set benchmarks for coming out of the mandate, such as seven-day case counts falling below 200 cases per 100,000 population, “a point we were at not too long ago,” she said, noting that that would still be in the “high-transmission” category. Currently, that number is at a record 1,388.3 cases per 100,000 population — about 500 cases higher than it was in late 2020.

The second stipulation for repealing the mandate would be local hospital capacity sitting at 85% or less for a week. Local hospital capacity fluctuates day-to-day according to staffing levels but hasn’t been below 85% since Jan. 3.

“We’ve got to give them breathing room. We have got to make sure that they can take care of all of you. And this is how we do that,” she told the board.

Douglas County Commissioner Maureen Boyle, a physician by trade, said during the meeting that she has witnessed what the county’s hospital capacity numbers mean and how they could affect people.

“I may sound like an alarmist but there’s a point where you’re talking about a 40% need for beds, and we’re already at 95% — where’s it going to come from? I mean, are we talking about ethical decisions that need to be made... rationing care? I mean, those are the scary things to me,” she said.

Commissioner Mike Friend expressed concern for local businesses should a mask mandate be put into effect.

“Is it a clerk at Target that says you can’t come in here without one? What happens, Dr. Hues? I’m serious about this,” he said.

She said the health department will check complaints of businesses that are not in compliance of the masking requirements.

“If there are repeated offenses, then local law enforcement can be involved to issue a citation,” she said.

Dr. Huse said the temporary measure, backed by local hospitals and Omaha City Council members, is not political — she’s just doing her job.

“Ultimately, I was brought here to protect the public, and that is what I am trying to do,” she said.

Mayor Jean Stothert’s office issued a statement Monday evening saying that “a mask mandate in only Omaha does not make sense when people who live in Douglas and surrounding counties come to Omaha every day.”

The mayor issued a follow-up statement Tuesday afternoon, restating her opposition to the mask mandate but acknowledging that the health director was legally able to do so, noting “the order signed by Dr. Huse cannot be voided by the Mayor or the City Council.”

I do not support Dr. Huse’s decision to proceed with a mask mandate, although I recognize she has the authority to do so...

Posted by Jean Stothert on Tuesday, January 11, 2022

City code citations

Douglas County Health Director Dr. Lindsay Huse cited specific sections of the Omaha City Code in declaring her intent to declare a mask mandate for the city. Below is the language found in those sections.

Sec. 12-1. - Definitions.

For the purposes of this chapter, the following words or phrases shall have the meanings respectively ascribed to them:

Department or health department: The Douglas County health department.

Director or health officer: The director of the health department or his authorized representative.

(Code 1980, § 12-1; Ord. No. 33783, § 1, 1-9-96)

Sec. 12-21. - Duties regarding prevention of contagious disease.

The health director shall take all measures necessary to prevent the introduction within the city of malignant, contagious and infectious diseases, and to remove, quarantine or otherwise dispose of any person or persons attacked or having any such disease.

(Code 1980, § 12-21)

Sec. 12-23. - Adoption of rules and regulations.

The health director shall have the authority to adopt such rules and regulations, restrictions or measures as he shall deem necessary to protect the public health of the city.

(Code 1980, § 12-23)

Sec. 12-24. - Authority at threat of epidemic.

It shall be the duty of the health director, whenever in his judgment the city is afflicted or threatened with an epidemic of contagious or infectious disease, to issue or cause to be issued such orders, regulations and instructions as may, in his judgment, be deemed effective for the prevention, removal or limiting of such disease, which orders, regulations and instructions shall remain in full force and effect until revoked by the director.

(Code 1980, § 12-24)

Watch Tuesday’s news conference

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