Gov. Roy Cooper removes his mask to begin a briefing on North Carolina’s coronavirus pandemic response Monday, Jun. 15, 2020, at the N.C. Emergency Operations Center in Raleigh. Photo courtesy of the N.C. Department of Public Safety

by Anne Blythe, North Carolina Health News

There no longer is a state of emergency for COVID-19 in North Carolina even as 61 counties still have high community levels of illness related to the virus and strained health care systems.

Gov. Roy Cooper announced in July that he would let the executive order that he initially implemented in March 2020 expire on Aug. 15. Cooper and state health officials had argued for keeping the state of emergency active, in part to maintain the flexibility provided to health care systems through his declaration.

Now those flexibilities have been covered through provisions included in the most recent state budget.

One such provision gives the state health director the power to issue standing orders for COVID-19 treatments, tests and vaccines through 2023.

“Standing orders are… a very efficient tool in public health, and we’ve used them a lot with communicable diseases,” State Health Director Betsey Tilson said during the Public Health Leaders Conference in May. “They are a tried and true great public health tool that can really help you be the physician for your community and not necessarily writing an individual order for every patient.”

Tilson said that her office worked with members of the General Assembly to get the language  around standing orders into the budget. 

“COVID-19 is still with us, and North Carolinians now have multiple ways to manage the virus, so it doesn’t manage us,” Kody Kinsley, secretary of the state Department of Health and Human Services, said in a statement issued earlier in August. “NCDHHS will remain focused on COVID-19 trends and data and ensuring we stay prepared.”

Federal protections

When Cooper declared a state of emergency in North Carolina on March 10, 2020, little was known about the then-novel coronavirus and the impact it would have on the world.

Since then, 25,724 North Carolinians have died from illness related to COVID-19, according to the DHHS dashboard, and more than 3.047 million cases have been reported.

“The pandemic brought unprecedented challenges to our state and people now have the knowledge and the tools like vaccines, boosters and therapeutic treatments to keep them safe,” Gov. Roy Cooper said recently. “Executive orders issued under the State of Emergency protected public health and helped us save lives and livelihoods. North Carolina is emerging even stronger than before and my administration will continue to work to protect the health and safety of our people.”

Cooper’s order expired at the end of the day on Aug. 15.

At the federal level, there continues to be a determination that a public health emergency exists because of the continued consequences of COVID-19. It is set to expire on Oct. 15, but could be extended.

President Joe Biden and members of his public health team have said they would give states 60 days’ notice before letting the declaration expire to provide “predictability and stability.”

The public health emergency allows the administration to expand access to Medicaid for millions of people who would otherwise lose the coverage they gained since the beginning of the pandemic. The powers associated with the emergency order provided the flexibility to develop vaccines quickly and distribute them across the country, as well as offer COVID-19 tests and treatments for free.

Debating extensions

There has been political debate, just as there has been throughout the pandemic, about the timing of ending such a declaration and whether health care facilities and providers are in positions of strength needed to fight another potential surge in cases.

In North Carolina, Republican lawmakers tried more than once to end the state of emergency but Cooper vetoed some attempts and negotiated the language now included in the budget.

During the state of emergency, health care facilities and workers had broad immunity from malpractice claims brought during that time so they could respond quickly and vigorously to the pandemic.

The federal Public Readiness and Emergency Preparedness Act, passed in 2005, was enacted when the federal emergency was declared in early 2020. The law protects health care workers from liability for administering COVID-19 vaccines, tests and drugs.

North Carolina’s state of emergency went even further and shielded workers from lawsuits that could arise from inadequate staffing or supplies.

On May 2, 2020, the General Assembly adopted Senate Bill 704, “An Act to Provide Aid to North Carolinians in Response to the Coronavirus Disease 2019, (COVID-19) Crisis.” In that bill, lawmakers created temporary immunity for “civil liability for any harm or damages” caused because of decisions made in response to or as a result of the pandemic. Those temporary protections were only extended as long as North Carolina was in a state of emergency.

Now that the North Carolina state of emergency has expired, John McCabe, a lawyer in Cary who specializes in personal injury cases as well as fighting incidents of neglect and abuse in nursing homes and assisted living facilities, said that could mean an uptick in medical malpractice cases in North Carolina.

“Basically, it removes the COVID immunity and gets us back to where we were before,” McCabe said.

What happens next remains a question.

“We’ll have to see how the courts will treat this,” McCabe said.

This article first appeared on North Carolina Health News and is republished here under a Creative Commons license.

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