State Senator George Borrello speaking on lawsuit against NYS Dept. of Health (April 2022)

The State Attorney General’s Office has appealed a State Supreme Court ruling that said the State Department of Health exceeded its authority by using rulemaking process for isolation and quarantine procedures.

The lawsuit against the State Department of Health had been brought by State Senator George Borrello and others in regards to the enactment of a state DOH regulation that establishes isolation and quarantine procedures for those who are suspected of having a communicable disease. The proposed regulation was adopted as an emergency regulation on February 22, 2022 and has been renewed at 90-day intervals through July 20, 2022. It has also been published in the New York State Register for permanent adoption through the rulemaking process.

The proposed rule would allow the Health Department to coordinate with a local health authority to mandate isolation and quarantine for individuals exposed to communicable diseases, even in locations beyond their own homes.

Cattaraugus County State Supreme Court Judge Ronald Ploetz issued a ruling on July 8, 2022 that cited the fact that there is already established Public Health Law governing isolation and quarantine which balances individual rights and the need for public safety.

He notes that in Rule 2.13 there is “no such due process protections…The Commissioner has unfettered discretion to issue a quarantine or isolation for anyone, even if there is no evidence that person is infected or a carrier of the disease… Involuntary detention is a severe deprivation of individual liberty, far more egregious than other health safety measures… Rule 2.13 merely gives “lip service” to Constitutional due process.”

In response to the state’s appeal, State Senator George Borrello issued a statement saying the state’s appeal is “disappointing, but not a surprise,” calling their actions, “.. an egregious waste of taxpayer dollars and an attempt to defend an indefensible policy. The constitutional separation of powers and the right of due process are principles that cannot be compromised.”

State Senator George Borrello speaking on lawsuit against NYS Dept. of Health (April 2022)

A judge has ruled the New York State Department of Health exceeded its authority by using rulemaking process for isolation and quarantine procedures.

The lawsuit against the State Department of Health had been brought by State Senator George Borrello and others in regards to the enactment of a state DOH regulation that establishes isolation and quarantine procedures for those who are suspected of having a communicable disease. The proposed regulation was adopted as an emergency regulation on February 22, 2022 and has been renewed at 90-day intervals through July 20, 2022. It has also been published in the New York State Register for permanent adoption through the rulemaking process.

The proposed rule would allow the Health Department to coordinate with a local health authority to mandate isolation and quarantine for individuals exposed to communicable diseases, even in locations beyond their own homes.

The ruling by Cattaraugus County Supreme Court Judge Ronald Ploetz cited the fact that there is already established Public Health Law governing isolation and quarantine which balances individual rights and the need for public safety. He notes that in Rule 2.13 there is “no such due process protections…The Commissioner has unfettered discretion to issue a quarantine or isolation for anyone, even if there is no evidence that person is infected or a carrier of the disease… Involuntary detention is a severe deprivation of individual liberty, far more egregious than other health safety measures… Rule 2.13 merely gives “lip service” to Constitutional due process.”

State Senator George Borrello announcing lawsuit against Governor Hochul, NYS Department of Health

A request by New York State to move a lawsuit about changes to the Department of Health regulations from state to federal court has been denied.

State Senator George Borrello is part of a lawsuit filed in Cattaraugus County Supreme Court over the State Department of Health making an emergency regulation permanent that establishes isolation and quarantine procedures for those suspected of having a communicable disease.

Borrello said Governor Kathy Hochul had requested that the lawsuit be moved to federal court, “Because part of our lawsuit mentions due process and the constitutional right to due process. So they tried to change court venues from a state court to the federal court. The federal court judge that was assigned the case immediately threw it back to the state.”

Borrello said at issue is the state and department of health trying to create their own rules about how and when a person can be quarantined for illness, including having the ability to remove a person from their own home without due process, “Without actually having to prove anything. The reason being they could be suspected of potentially being exposed to a communicable disease. No proof required. No due process outlined and they could be detained for an indeterminate amount of time without ever going before a judge.”

Borrello said he believes his case is strong because there already was a bill introduced in the State Assembly before the Pandemic with similar provisions that was pulled because of lack of support. He said with Governor Hochul trying to essentially create a new law and by-passing the state legislature that she’s in violation of the separation of powers.

State Senator George Borrello announcing lawsuit against Governor Hochul, NYS Department of Health

State Senator George Borrello is part of a lawsuit against Governor Kathy Hochul and the State Department of Health over a proposed regulation regarding isolation and quarantining.

The lawsuit filed in Cattaraugus County Supreme Court is in regards to an emergency regulation under the State Department of Health that establishes isolation and quarantine procedures for those suspected of having a communicable disease. The proposed regulation had been adopted as an emergency regulation on February 22, 2022 and was due to expire April 22, 2022.

However, Borrello said the the regulation was also published in the New York State Register issued December 15, 2021, for adoption as a permanent regulation through the agency rule-making process. Borrello said it should have been something that came before the State Legislature, “With a bill to be discussed and debated. And in fact, there was a bill like that – Assembly Bill 416 by Assemblyman Perry. It’s actually been around for years, long before the Pandemic. And it basically would give power to public health officials to isolate and quarantine someone without due process.”

Borrello said the sponsor recently pulled that bill due to “backlash and controversy.”

He said Hochul is taking the language of that bill and trying to make it a permanent regulation under the Health Department, which he says is a clear violation of the separation of powers, “For me, if this is something the New York State Legislature, representing the people of New York State, wants to do, then bring it forward as a bill. Have it debated and discussed. Pass it. You be the one to tell the people you report to, the people who elect you, that you voted to have someone quarantined without due process. And if that passes muster, then so be it, but not as a regulation put forth under the radar by Governor Hochul and her Department of Health.”

Other petitioners in the lawsuit include Assemblymembers Michael Lawler and Chris Tague as well as the organization, Uniting NYS.