Tri-County Health mandates masks for all students, removes ability for counties to opt out

Undoing decisions by Douglas and Adams counties to opt out of a requirement for masks in schools, the Tri-County Health Department on Monday repealed the ability of counties to opt out of its public health orders and issued an order requiring masks for all people age 2 and older in schools and childcare settings.

The decisions at an afternoon meeting were made over the objections of Douglas County’s appointees to Tri-County’s board of health, the policy-making body for the health department that serves Douglas, Adams and Arapahoe counties.

The health agency should “not have the least-affected folks, which are the children, carry the burden on behalf of adults,” said Kevin Bracken, who hours earlier was appointed as an interim health board member from Douglas County.

Generally, COVID-19 thus far has not made children as sick as adults, but “we want to keep kids from transmitting COVID to their parents,” especially among high-risk family members, John Douglas, executive director of Tri-County Health, said previously.

Douglas at the Monday meeting urged wearing masks partly to avoid disruptions to in-person classes due to outbreaks and isolation of individual COVID-19 cases.

School settings in Arapahoe, Douglas and Adams counties saw 15 confirmed coronavirus outbreaks starting in August, according to Tri-County Health data as of Aug. 26. Across the counties, officials had also seen 23 suspected outbreaks as of that date.

Of the total — confirmed and suspected — most are at K-12 settings, and one is from a childcare setting, according to Tri-County Health. Days later, the number of confirmed and suspected outbreaks since the beginning of August in the three counties had risen to 44, the health agency said in an Aug. 30 news release.

Many of the outbreaks have occurred at high schools and middle schools, according to Douglas, the health director, though elementary schools also contributed heavily.

Tri-County’s board of health approved its initial school mask order on Aug. 17, and it took effect Aug. 23, requiring masks for all children aged 2 through 11 years old — and all the individuals working or interacting with those children — in all indoor school and child care settings in the three counties. Children younger than 12 are not currently eligible to be vaccinated against COVID-19.

Some school districts in Adams and Arapahoe had implemented mask requirements before that initial order was approved.

Because of when mask policies took effect, Douglas said they might begin to affect virus trends soon. Due to how long coronavirus infections can take to manifest, and with more days needed after that to record cases, it can take a couple weeks for outbreaks to take shape after virus spread starts, Douglas said.

The text of Tri-County Health’s new school mask mandate defines "school setting" as any indoor facility used for pre-K through 12th-grade instruction of academic or extracurricular activities. It includes public, private and charter schools.

‘A different matter’

Bracken, the interim board member from Douglas County, argued that COVID-19 hospitalization data doesn’t support requiring children to be masked.

“You are, and we are, collectively masking the wrong demographic,” Bracken said. He added: “You’re punishing the children.”

Bracken referenced the hospitalization threshold that Tri-County Health had set in the spring that would have triggered the return of “COVID-19 dial” capacity restrictions on businesses, saying that hospitalizations haven’t reached that mark. Tri-County Health allowed its dial policy to expire in mid-August.

Douglas argued that evaluating coronavirus policy regarding schools is a separate matter.

Tri-County Health officials felt that the earlier hospitalization threshold — 2 per 100,000 residents, measured a certain way over a 14-day period — was an appropriate measure by which to guide restrictions that would have economic repercussions on businesses.

“This is a different matter now,” said Douglas, citing concerns about spread of COVID-19 in schools and the interruptions to in-person classes that it could cause.

The Colorado Chapter of the American Academy of Pediatrics wrote an Aug. 10 letter to the governor, the state public-health department and Colorado’s local public health officials, urging them to require “universal masking” in all Colorado schools and childcare settings.

“The current patchwork of school policies across the state will result in more COVID-19 cases, more transmission of the virus, more quarantines, and repeated school closures,” the letter read.

It also cited concern about newer versions of the coronavirus, such as the delta variant, that are more easily spread among children, adolescents and adults.

And while children age 12 and older are eligible for vaccination, many middle- and high-school students remain not fully vaccinated, Douglas said.

It is “hardly unique” that Tri-County Health would consider a mask mandate for all students, Douglas said, pointing to decisions in other metro Denver counties.

The Denver Department of Public Health and Environment issued an order that all individuals aged 2 and older must wear a mask in all childcare facilities and preschool through grade 12 schools regardless of vaccination status. The order is dated Aug. 17.

Likewise, Jefferson County Public Health issued an order requiring masks inside all schools and child care settings, preK-12, for all individuals aged 2 and older regardless of vaccination status, according to an Aug. 16 announcement. Jefferson County later amended its order to include everyone ages 3 and older, according to an Aug. 28 announcement.

Weeks of backlash

The issue of whether to require masks in schools amid the delta surge has evoked contentious responses from community members in all three counties, with residents speaking in public meetings by the dozens in recent weeks about whether local government bodies should support mask requirements to combat COVID-19.

A crowd protested the initial Tri-County Health order on school masking outside the Adams County Government Center on Aug. 24 before the county commissioners — the county’s elected leaders — voted 3-2 to opt out of that earlier mask order.

At least several dozen people protested outside the Arapahoe County administration building on Monday ahead of a preliminary discussion by that county’s leaders on whether it should opt out of that earlier Tri-County order, a choice now removed by Tri-County’s action later that day.

The three Douglas County commissioners unanimously approved a decision to opt out of the initial mask order on Aug. 19.

The Tri-County board of health in its afternoon meeting Monday rescinded that mask order and approved a similar order that expands the mandate for indoor school and childcare settings. The agency now will require all individuals 2 and older to wear masks in those places. The order takes effect on Sept. 1.

The board of health also approved a decision to rescind its policy that allows county commissioners to opt out of countywide public health orders. That policy was adopted by the board in November 2020 amid a rift between Douglas County and Tri-County Health about the agency’s pandemic policies.

Tri-County’s board of health is composed of nine seats — three each representing Adams, Arapahoe and Douglas counties.

The board of health vote on the new school mask mandate was 5-3, with Bracken, Douglas County’s Linda Fielding and Arapahoe County’s Thomas Fawell voting no. The vote on repealing the opt-out policy was the same. Kim Muramoto, another Douglas County representative on the board, was absent.

Douglas County commissioners released a statement Monday shortly after the health board’s decision.

The “decision to rescind the opt-out provision from their policy during their meeting this afternoon unilaterally reversed our negotiated Nov. 10, 2020, agreement. This decision removed from the Board of County Commissioners the promised local control regarding the issuance of countywide public health orders,” the statement said.

The commissioners noted that they will continue directing county staff to work with “expert professionals” and the Douglas County Public Health Advisory Committee to identify a public health agency framework “that will honor the needs of Douglas County citizens.”

The county has long been contemplating separating from Tri-County Health to form its own local public health agency.

Douglas, the health chief, noted that one of the messages of Adams County commissioners’ statements about opting out was that they support masking and mask mandates but that they don’t support the idea that commissioners should decide whether an order should continue — they would rather have public health officials deciding on matters of health expertise, Douglas said.

‘A criminal matter’

The health agency’s Monday meeting came shortly after Douglas County officials aired complaints about the process by which the Tri-County board of health had approved the initial mask order.

The county was seeking to overturn that order, claiming that the board of health violated open meetings law by deliberating during executive session, or a closed-door meeting, in a way that went outside the scope of the narrow discussions executive sessions are intended to include. Such sessions are known to discuss legal questions, for example.

Repealing the earlier mask order and reissuing another one effectively allowed the board of health to sidestep Douglas County’s complaints about the process, at least for purposes of keeping a mask mandate in place.

As the health board was considering removing Tri-County’s opt-out policy in the Monday meeting, board member Linda Fielding abruptly changed the topic, saying: “I want to bring a criminal matter to the board’s attention.”

Fielding then referenced Colorado statute 18-8-306, a state law that prohibits coercion of public officials. The law bars “attempts to influence any public servant by means of deceit or by threat of violence or economic reprisal against any person or property, with the intent thereby to alter or affect the public servant’s decision, vote, opinion, or action concerning any matter which is to be considered or performed by him or the agency or body of which he is a member.”

“I have information directly about one case, and there may be other (cases) that I suspect, and this is concerning board members that have been basically compromised because they have had complaints filed against them,” Fielding said.

It wasn’t clear from the meeting who was allegedly the target of coercion or how complaints filed against board members would relate to the state coercion law. Fielding didn’t specify which board members she was referring to or list details of alleged complaints. A spokesperson for Tri-County Health wasn’t immediately available to comment on Tuesday.

Fielding called the Monday meeting “compromised” and said it should be canceled “until we can resolve the matters of these board members.”

Then Kaia Gallagher, board president, asked whether the board members were available for an executive session to take place that night, but not all the members said they were.

In response, Fielding made a motion to terminate the meeting and void what the board had discussed thus far. She argued the meeting was improperly called as an emergency meeting and that there was no reason to hold the meeting on short notice. Bracken seconded that proposal.

Douglas, the health chief, said the gathering was a “special meeting,” not an emergency meeting. The difference between the two wasn’t clear from the discussion.

Douglas said he talked with Gallagher about organizing the meeting because he felt that the nature of rising case rates, two counties opting out of the mask order and a third considering it “needed immediate attention.” The Arapahoe County commissioners had been scheduled to decide whether to opt out of the initial school mask order at a public meeting Tuesday morning, but Tri-County's Monday action removed that choice.

All the Tri-County board of health members aside from Fielding and Bracken voted against ending and voiding their Monday meeting.

Randy Dement, Tri-County Health’s legal counsel, said Fielding’s concerns should be discussed in executive session because she raised legal issues.

Gallagher said the board would talk with Tri-County Health’s attorney to set up an executive session. It wasn’t immediately clear when the session would occur.

School districts required masks

School districts, schools and child care facilities weren’t required to follow the earlier mask order if their county leaders had opted out, but they could still choose to do so, according to Tri-County, and several did.

Douglas County School District Superintendent Corey Wise had said the district must follow the health order, regardless of whether county commissioners opted out. In a letter to the community, he cited district policy that states Douglas County Schools will follow the guidance of local and state public health agencies in responding to common communicable disease.

At the time of the Adams County commissioners’ decision to opt out of the earlier order, several districts in Adams County already required masks for young students.