Beshear Yanks Kentucky's School Masking Order after State Supreme Court Ruling

"The position we put forth, I still think is right. But we lost," Kentucky's governor said.

click to enlarge Kentucky Gov. Andy Beshear gives a COVID-19 briefing on Aug. 23, 2021. - Image: YouTube video still
Image: YouTube video still
Kentucky Gov. Andy Beshear gives a COVID-19 briefing on Aug. 23, 2021.

Kentucky Gov. Andy Beshear has rescinded a statewide order for those in schools to mask up, just two weeks after putting the order in place.

The Kentucky Supreme Court shared an opinion Aug. 21 that the state's General Assembly could limit what a governor can and cannot do on his or her own.

In practice, Beshear can no longer set a mask order for the Commonwealth, despite the state's COVID-19 cases overwhelming hospitals. Instead, he would need to call a special session of the General Assembly to discuss and pass a new state of emergency together, and then pass orders that result from the state of emergency.

The action essentially means that public health emergencies will be mitigated by committees of legislators instead of measures put forth by medical experts such as Dr. Steven Stack, commissioner for the Kentucky Department for Public Health. Stack and other medical personnel have been appearing at COVID-19 briefings with Beshear throughout the pandemic.

Beshear and legislators reportedly are connecting on what an agenda for a special session might include. The Courier-Journal has an explainer about Kentucky's special session procedure and what steps Beshear might take now.

Beshear signed the order requiring everyone to wear a mask when in indoor areas within all educational settings on Aug. 10, saying that masking helps slow or reduce the transmission of COVID-19 (health experts agree, with many saying that the coronavirus is increasingly becoming more airborne). Beshear was not legally required to end the school masking mandate immediately but felt it was his duty to do so, given the Kentucky Supreme Court's decision.

"The position we put forth, I still think is right. But we lost. I lost," Beshear said on Aug. 23. "I can still work my tail off every day with the tools that I have to protect people."

A mask mandate enacted by the Kentucky Board of Education remains in effect for public schools throughout the state.

Republican legislators and Catholic school advocates in Kentucky largely have been against mask mandates from Beshear — a Democrat — even as the Commonwealth suffers through another sustained COVID-19 spike. Some have pressed the legalities of Beshear's, or any governor's, emergency powers.

In Ohio, a similar situation unfolded earlier this year with the passing of Senate Bill 122, which blocks the Ohio Department of Health and, by extension, Gov. Mike DeWine, from enacting health protocols. Until June, DeWine largely had supported protective measures such as masking, capacity limits, physical distancing and curfews, and credits those actions with slowing the spread of COVID-19 within the Buckeye State.

Kentucky remains engulfed with COVID-19

The decision to limit the governor's executive powers comes as Kentucky is sustaining a sharp, weeks-long spike in COVID-19 cases, largely attributed to the highly transmissible Delta variant of the coronavirus. As of Aug. 25, all but one of Kentucky's 120 counties are labeled as being high risk by the Centers for Disease Control and Prevention (CDC).

The virus has quickly spread throughout the state with little resistance, pushing healthcare workers to the brink.

In a report released Aug. 24, state and national agencies said that Kentucky had 18,157 new COVID-19 cases as of Aug. 20 — a 9% increase over the previous week.

On the same date, the positivity rate was 13.9%, a 1.2% increase. It was 9.77% on Aug. 2 and 1.79% in June (the positivity rate is the number of people who test positive out of all coronavirus tests performed).

There were 3,684 COVID-related hospital admissions — a 26% increase — at a rate of 30 COVID cases per 100 hospital beds; 20% of Kentucky's hospitals are critically short-staffed due to the virus's hold. Beshear said on Aug. 23 that up to 11 additional hospitals are experiencing nursing shortages.

During an Aug. 23 briefing, Beshear asked medical personnel to share what's been happening in Kentucky's facilities, saying that many hospitals are converting spaces into Intensive Care Unit overflow and discontinuing overnight surgeries to implement "modified disaster mode." 

“For our inpatient census of COVID patients, we have doubled in one week. And our curve appears to be getting sharper,” Dr. William Melahn, chief medical officer at St. Claire HealthCare, said during the briefing. “We’ve made the very difficult decision to move to code yellow, which is our disaster plan."

Dr. Jason Smith, chief medical officer of UofL Health, echoed that.

“In the past three weeks, we have seen the number of COVID-19 patients in our healthcare organization quadruple. We are seeing younger patients that are sicker. They are filling up our hospital beds, backing up patients in the emergency department, and we are getting to the point where it's going to be hard to deliver emergency care to those who need it,” Smith said. “I urge everyone in Louisville and the Commonwealth, please, step up and get the vaccine for yourself, your families and the communities around you.”

The doctors emphasized that being vaccinated against COVID-19 is the only way to bring relief to hospital staff and end the pandemic.

"There’s two reasons to be vaccinated. One is to protect you, and the other is to protect people around you," Melahn said. "Let me just point out a little bit of reality: If we had another disaster happen right now — even a small one — we don’t have any reserve left. So if we had a bus accident, an influenza outbreak or anything else, I’m not sure what we would do.”

Additionally, Kentucky doctors are seeing more COVID-19 in children, with pediatric cases rising 400% over the previous month. On Aug. 18, there were 1,275 new cases in Kentucky among people 18 and younger, the Lexington Herald-Leader reported.

During a briefing on Aug. 10, Dr. Scottie B. Day, physician-in-chief at UK HealthCare’s Kentucky Children's Hospital in Lexington, said that though children hadn't been hospitalized in large numbers with the original strain of COVID-19, things are different with the Delta variant now. He said that pediatric hospitalizations have increased week over week and pediatric COVID-19 deaths are twice the number of pediatric flu deaths reported by the CDC between 2019 and 2020.

Day also warned that COVID-19 is causing additional health complications.

"(Along with the COVID-19 surge), we're seeing an unseasonable spike in other respiratory illnesses. At children's hospitals both here and at Louisville, we're seeing bed spaces being taken up by a variety of illnesses that typically we would see only in the wintertime," Day said.

Beshear makes "Red Zone' recommendations and urges vaccination

Beshear announced recommendations for the 119 Kentucky counties that are considered to be in the "red zone" — counties with weekly average of 25 or more new COVID-19 cases per day, per 100,000 people. The goal is to lower the number of COVID-19 cases and prevent viral transmission within the state.

According to a release, the governor's recommendations include the following measures:

  • Increase vaccination efforts to reach unvaccinated persons
  • Require masking in government buildings
  • Encourage masking in public indoor settings for all persons > 2 years of age
  • Encourage masking in crowded outdoor settings for all persons > 2 years of age
  • Encourage physical distancing of at least six feet apart in public settings
  • Maximize usage of outdoor spaces for gatherings
  • Consider limiting in-person community gatherings and postponing large events
  • Encourage medically vulnerable persons to avoid large crowds
  • Engage community partners and stakeholders to implement a strong communication plan

Many of these measures were ones that medical experts had recommended throughout the pandemic; Beshear had implemented some via emergency health order.

Vaccination rates in many of Kentucky's counties are lagging, even though infectious disease experts routinely urge vaccination to help control the virus. Vaccines from Pfizer, Moderna and Johnson & Johnson have been deemed safe and received emergency use authorization last winter for people as young as 12 years old.

Pfizer received full FDA approval for adults on Aug. 23. The approval from the FDA means that the Pfizer vaccine has gone through significantly more trials and researchers have examined more data. With this approval, businesses, schools, employers and other groups can mandate vaccination more easily, with many states already requiring a variety of vaccines for residents.

Pfizer is the first company to have applied for full FDA approval in the United States. Moderna also has applied and is being reviewed. Johnson & Johnson says it will submit its application later this year. All vaccine manufacturers will also continue to conduct trials and seek approval for use in teens and children.

Overall, COVID-19 vaccination rates within Kentucky and throughout the United States have plateaued, starting for the most part in May and June when states lifted public health orders like masking and venue capacity limits. As of Aug. 20, only 55.3% of all Kentucky residents have had at least one dose of an authorized vaccine since vaccines first became available in phases at the start of the year, while just 47.2% are fully vaccinated. According to the CDC, a “fully vaccinated” person is one who is two weeks past their second dose of a two-dose vaccine (Pfizer and Moderna) or two weeks after a single-dose vaccine (Johnson & Johnson).

Most counties within Kentucky show COVID-19 first-dose vaccination rates of less than 50%, and some counties such as Robertson, Hickman and Christian have rates below 30%, according to Kentucky's coronavirus dashboard.

Scientists warn that the Delta strain is much more dangerous than the original virus. People infected with Delta carry 1,000 times more of the virus, experts say, which makes it easier to transmit among others when speaking, singing, sneezing or breathing hard, particularly within indoor areas and regions with low vaccination rates. Health experts say that Delta is more than twice as easy to spread. New studies are showing that the virus is becoming even more airborne.

Unvaccinated individuals are at the highest risk for severe infection and substantial health issues from coronavirus, experts say, though some vaccinated individuals also are becoming infected due to Delta's highly contagious nature. COVID-19 symptoms and rates are less severe in individuals who are fully vaccinated with a Pfizer, Moderna or Johnson & Johnson COVID-19 vaccine. 

Find COVID-19 information and Kentucky vaccine locations at kycovid19.ky.gov.

Watch Gov. Beshear's briefing below.


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