At the same moment on Tuesday, a hearing and a news conference took place in two parts of the Kentucky Capitol. One questioned the legality of school and daycare mask mandates, while the other suggested new statewide requirements may follow.
The Administrative Regulation Review Subcommittee heard testimony on two recent mandates. Emergency order 702 KAR 001:195E requires children wear masks in schools, while 902 KAR 002:213E focuses on daycare regulations. Governor Andy Beshear signed both rules on August 12.
As witnesses testified before the subcommittee, Beshear held a news conference where he warned that COVID-19 patients have hospitals near capacity. He also said a new statewide mask mandate is “under active consideration.”
The subcommittee called the previously unscheduled hearing after public criticism by some who questioned the governor’s orders. Legislators heard from supporters and opponents of the decision that Beshear said is vital to slow the spread of COVID-19 and the virus’ Delta variant.
After nearly three hours of testimony, the subcommittee voted to find the regulation on school masks “deficient,” which sends a message of the legislature’s intent even as the regulation moves forward.
When asked about the hearing, which was ongoing at the time, Beshear described the subcommittee’s action as “what happens when politics runs over public health and common sense.”
He reported 25 new coronavirus deaths.
Several subcommittee members questioned the constitutionality of Beshear’s mandates. They shared concerns about the lack of local input and heard testimony from education decision-makers, children, and families.
Kentucky Department of Education (KDE) Commissioner Jason Glass and Kentucky Board of Education (KBE) Chair Lu Young testified via videoconference. KBE voted to implement a mask mandate at all Kentucky schools throughout the school year. Young explained that they would revisit the decision if the current situation with the virus changed.
Several citizens signed up to publicly support or oppose the mandates.
Pragaya Upreti, a high school senior, told the subcommittee, “I implore you to uphold the mask mandate in our schools. Prioritizing the health and safety of young people should not be rooted in politics but instead guided in informed decision making.”
Shannon Stocker, the mother of a child fighting cancer, also supported the mandate by saying, “No one’s choice to wear a mask is more important than my child’s right to live.”
Chris Henning testified in person while not wearing a mask. He opposed the regulations and questioned the effectiveness of facial coverings. “If masks work, why have masks not worked?” he asked.
Retired critical care nurse Rita Yates questioned the safety benefits of masks in schools, including where her grandchildren study. “COVID-19 is a real thing, but we can protect ourselves best when we are consciously aware of our environment and we use protective equipment properly. To breathe into a mask all day is not protecting our children. I would consider it abuse to send your children to school to breath in a mask all day,” Yates said.
Senator Ralph Alvarado (R-Winchester) suggested that local superintendents did not testify because they did not share the KDE’s opinion and likely fear retribution. Representative Mary Lou Marizan (D-Louisville) called the subcommittee’s work “political theater.”
Chair Senator Stephen West (R-Paris) asked Commissioner Glass if he had threatened school districts or superintendents with reduced funding if they did not follow the regulation. Glass responded that he had not but stated that there are consequences to ignoring Kentucky law. The consequences depend upon the circumstances, he explained. Glass insisted that an appropriate response would follow violation of any state law.
As the subcommittee continued into its third hour, members heard testimony regarding the childcare center mask regulation.
West asked Kentucky Department of Public Health (KDPH) Secretary Eric Friedlander about repercussions for failure to follow that regulation. “What will happen if a day care provider does not comply, by choice, or if a two-year-old child doesn’t keep their mask on?” West inquired.
Friedlander explained that “by choice” was the key phrase. He insisted there would be a fair hearing procedure but that violations of state regulations are handled through the licensure process. “The providers have no way of knowing what will happen to them if they do not comply,” West responded. He said the regulation suggests they will have their license removed if they do not follow the rule.
Like the school mask mandate, subcommittee members also voted to find the day care regulation “deficient.”
During the 2021 legislative session, lawmakers passed Senate Bill 1 to limit a governor’s executive orders to 30 days unless extended by the General Assembly. Governor Beshear vetoed the measure, and lawmakers voted to override. The Kentucky Supreme Court has placed an injunction on enforcement of Senate Bill 1 until it decides the matter.