West Virginia lawmakers are in the midst of their second full regular legislative session since the COVID-19 pandemic began, and the state is still fighting a wave of infections that has hardly relented since September. COVID hospitalizations steadily crept up last month until reaching a record high of 1,100 at the beginning of February, and the virus continues to claim lives, with more than 5,800 West Virginians killed since the pandemic began.
And on the same day members of the National Guard were slated to start arriving at West Virginia hospitals to help with staffing shortages as hospitals filled up, a House of Delegates committee advanced a bill that would restrict schools from requiring masks and quarantining students and staff.
It’s not the only bill lawmakers introduced in the first weeks of the session that appeared to focus on stopping responses to COVID-19 rather than stopping the virus itself.
At least five bills have been introduced that either would restrict the ability of state and local governments to manage the pandemic or go against recommended medical advice. They would ban universal mask mandates in towns and public schools, prohibit universities from requiring the vaccine, require that pharmacists fulfill prescriptions for drugs to treat COVID-19 that the federal government says doesn’t work, and even bar employers from requiring the vaccine.
Dr. Judith Feinberg, a professor and infectious disease expert at West Virginia University’s School of Medicine, says that the Legislature wading into COVID mitigation policies is an attack on public health that could worsen the pandemic in the state.
“It means public health is not secure. People who don’t know about public health are making legislative decisions, because sadly public health has become so criticized,” she said. “Legislators should not be making public health decisions, they should be funding and empowering it. This goes for COVID and everything else.”
Removing local control
It’s been a long time since children and teachers had a normal school day as the pandemic has stretched across three academic years. When the current school year began, adults and teenagers already had widespread vaccine access, and school administrators were anticipating the approval for younger children that came later that fall. Policies varied by school district, but they placed a premium on keeping schools open, with a focus on masks and quarantining exposed individuals.
But a bill that lawmakers advanced out of the House Education Committee in the early days of the session conflicts with the federal government’s recommended guidance — universal masking for everyone older than 2 years old in schools — and could take away public schools’ ability to manage outbreaks. It would prohibit public schools from requiring masks or quarantining and testing exposed staff and students, no matter how high community transmission was.
Up until now in West Virginia, the decision on school masking has been left to local school boards. As of Feb. 2, school boards in 34 of West Virginia’s 55 counties had a universal mask policy in place, and all but one of the rest required masking under certain conditions.
The leaders of both West Virginia teachers unions say teachers are split on the issue. But at the end of the day, they want schools to be open and think counties should have the ability to decide if universal masking is necessary, depending on conditions in their county and the health of their members.
“We have said since the beginning of COVID that you have to rely on the health experts and your education experts … to come up with a plan that is best for their county. This really should be local control at its highest form,” said Dale Lee, president of the West Virginia Education Association. “It seems to me that the direction they want to go in is to say local control until it’s different from what I believe in.”
Delegate Jordan Maynor, R-Raleigh, the bill’s lead sponsor, says he introduced it after hearing from teachers and parents that masks were becoming a distraction in schools. To him, local control goes beyond school boards.
“I’m not sure how much more local you can get than parents and individuals,” Maynor said. “At the end of the day, this is not taking away their ability to mask if that makes them feel safe and that’s what they want to do. Everybody’s gonna have a choice if this bill passes whether to mask or not.”
But in parts of West Virginia where the vaccination rate among kids is dangerously low, requiring masks in schools could provide significant protection for all students and teachers.
Take Lewis County, where Brittney Barlett is raising her nephew. There, only about 11% of children between 5 and 11 have had even one dose of the vaccine — even lower than the already-low state average of 17% for that age group. Barlett is vaccinated, but she’s still working to help her nephew overcome a fear of needles that has made getting him his first dose an ordeal. Requiring masks in schools would protect her nephew and his classmates until that happens.
“I think that’s just like a rule you have to follow, like a dress code or anything else. It’s something that you might not personally agree with, but it’s something that is instituted for the good of the school,” she said.
Debate over masking
Medical, public health and education experts are torn on COVID school policies in general, not just on the issue of masking. The American Academy of Pediatrics declared children’s mental health a national emergency last October, and studies have indicated that academic performance dropped against the backdrop of remote learning, particularly for younger students.
Weighing these factors, some medical experts have continued to recommend school mask mandates and quarantines as a way to try to ensure schools stay open through the pandemic. Others have said masks are no longer needed, citing the availability of vaccines for school children, developmental concerns and a lack of evidence that masks prevent COVID spread in children.
Dr. Jeanne Noble is an emergency medicine doctor at the University of California San Francisco and a coauthor of a recently released toolkit meant to help schools remain open safely. She says masks were a useful tool in the beginning of the pandemic when the medical understanding of COVID-19 was still evolving and before the vaccines were created, but after two years, no studies have shown that universal masking in schools is effective.
“The data behind masking in schools is actually poor. This is a hard fact to get to,” Noble said. “I think once we have had widespread access to vaccines, it’s really time to retire our masks because they were not a particularly effective intervention in the first place.”
But despite widespread vaccine availability in West Virginia, the state still has one of the country’s lowest COVID-19 vaccination rates for both the total population and kids between ages 5 and 11.
Delegate Cody Thompson, D-Randolph, is a teacher and voted against the bill in the House Education Committee. He says the bill will put older teachers with comorbidities at risk, and could drive them away from the profession at a time when the state has a teacher shortage.
“It’s also bad because in West Virginia, especially at my school and my district, we have a lot of older teachers, and older teachers who have cancer or their loved ones have cancer,” he said. “We lost many teachers when this first began that just flat out retired, substitutes too.”
For Ritchie County Schools Superintendent Jim Brown, this bill may be an opportunity to return to a feeling of normalcy and consistency in schools. In his county, they’ve opted to require masks in schools, partially because the West Virginia Department of Education guidance says schools with universal mask mandates are not required to quarantine people exposed to others who test positive for COVID-19.
“In that sense, it has helped us throughout this whole school year to keep folks at work and keep our students in school,” he said. “I think like just about everybody, it’s not predicated on the fact that we believe there’s an overwhelming efficacy with wearing a mask, that they’re effective and prevent the spread of COVID. It’s simply because the rule allows us to keep kids in school and our employees working if everybody has masks on.”
Maynor’s bill, which is sitting in the House Judiciary Committee, would end this loophole for schools because it essentially eliminates contact tracing by prohibiting asymptomatic quarantining and testing. Brown says it would be a welcome change in terms of logistics.
“For us, operationally, that makes things a little less cumbersome. It takes a lot to do all this contact tracing, and it’s been, to be quite honest, a nightmare trying to facilitate that work,” he said.
Bypassing medical judgment in other ways
It’s not just K-12 schools that have served as battlegrounds in debates on COVID response; universities and employers have had to navigate murky waters, too. And legislators have introduced bills that would affect these entities’ ability to control the virus as well.
HB 4414 would prohibit colleges and universities in West Virginia from requiring students be vaccinated to attend in-person classes. The bill doesn’t exclude private universities, so it would nullify the COVID vaccine requirements that the University of Charleston and Bethany College put into effect last year.
Late last year in a special session, state legislators passed a new law carving out additional exemptions to make it easier for West Virginians to opt out of employer vaccine mandates. During this regular session, some have proposed taking it further: at least two bills have been introduced that would directly prevent employers from managing COVID protections in the workplace. One would completely prohibit employers from requiring a COVID-19 vaccination, and another goes further for state employers: it would prohibit employees and applicants having to provide any medical information.
Then, there are the bills that directly contrast medical advice concerning COVID.
Ivermectin and hydroxychloroquine are two drugs that are approved for diseases that aren’t COVID-19. Both gained popularity through right-wing media as methods for treating the virus, despite a lack of evidence that they’re effective against COVID, and warnings from the U.S. Food and Drug Administration against self-medicating. Even so, West Virginia legislators have joined those in other states in introducing bills that would make it easier to obtain ivermectin.
One bill would permit pharmacists to dispense ivermectin without individual prescriptions by way of standing orders. A separate bill would fine a pharmacist who refuses to dispense the medication.
Valerie Blake, a health law professor at the West Virginia University School of Law, says these types of medical standing orders by legislatures have become more common in recent years for another reason: to make the overdose reversal medication naloxone accessible during the opioid epidemic.
“If somebody is overdosing on an opioid, all health care professionals agree that naloxone is the indicated treatment,” Blake said. “What’s different here is that most health care professionals do not believe that ivermectin is the appropriate treatment for COVID. So creating this standing order sort of bypasses that medical judgment and simply allows ivermectin to get into the hands of patients without health care professionals assessing the benefits and the risks.”
The FDA notes there are already effective treatments and therapies available for COVID-19. Blake says that legislators opening up the standing order process for unapproved treatments sets a dangerous precedent.
“What this could become is a way for the legislature, not just in West Virginia, but any state to bypass the agency approval process for what drugs are appropriate and what they’re indicated for, and bypass the medical community in terms of its decisions about what’s appropriate for patients or not,” Blake said.
These bills have all been introduced with numerous sponsors, and in some cases, even members of leadership have put their name on legislation aimed at COVID response. Although lawmakers have shown willingness in the past to ignore medical and health evidence, it has been amplified during the past few years; Dr. Feinberg says this push and the resulting legislation could allow people to harm others and themselves.
“We have a certain social attitude when it comes to shouting fire in a crowded theater: that you don’t have the freedom to harm other people,” she said. “That’s something we lost sight of during COVID.”
Correction: A previous version of this story mis-characterized Judith Feinberg as an epidemiologist. She is an infectious disease expert.
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