Sen. George Borrello, R-Sunset Bay, speaks about a lawsuit he has filed along with two Republican Assemblymembers challenging isolation and quarantine rules proposed by the state Health Department. Submitted photo

State Sen. George Borrello, R-Sunset Bay, is among the legislators filing a lawsuit over a state Health Department regulation that would allow forced quarantines by local health officials.

The lawsuit was filed Friday in state Supreme Court in Cattaraugus County. Borrello is joined by Assemblymen Chris Tague and Michael Lawler and Uniting NYS in an Article 78 action against Gov. Kathy Hochul, Health Commissioner Mary Bassett, the state Health Department and the state Public Health and Health Planning Council. The lawmakers allege the procedures violate the state Constitution and should be ruled null and void because the state lacks the statutory authority to create the rules and impermissibly crossed into the legislative arena with the rules.

The rules were introduced quietly late last year and surfaced publicly only after Rep. Chris Jacobs, R-Orchard Park, sent a comment to the state Health Department opposing the rule. The proposed regulation, 10 NYCRR 2.13, was adopted as an emergency regulation on Feb. 22 and is to expire on April 22, but the rule is also up for adoption as a permanent regulation through the agency rule-making process.

Among the changes would be a new section of the state health law spelling out new isolation and quarantine procedures. Isolation and quarantine orders would include home isolation or other residential or temporary housing location that the public health authority issuing the order deems appropriate, including a hospital if necessary but including apartments, hotels or motels. Implementing the proposal through administrative rulemaking, lawmakers argue, is a violation of the separation of powers.

“Today what we’re talking about is the rules — right now the Health Department is meeting to discuss those rules,” Borrello said during a news conference Tuesday in Albany. “The whole idea that a public health official could quarantine someone, isolate them, move them to a detention center, essentially with no due process, with no evidence this person is a public health threat. Now why is that important? I think it should be obvious to every New Yorker why this is a problem. For us, as members of the state Legislature, this should have been taken up by the legislature with a bill to be discussed and debated.”

The proposed new rules for isolation and quarantine are reminiscent of legislation proposed for the past several years by Assemblyman Nick Perry, D-Brooklyn. Perry proposed in A.416 allowing the governor or the appropriate health official to order the removal and detention of any person afflicted with a communicable disease in the event that there is a state of health emergency declared by the governor in relation to such disease. Perry’s proposal was first introduced in the 2015-16 legislative session after an ebola scare and was reintroduced in 2017-18, 2019-20 and 2021-22 sessions.

The bill was first proposed in 2015 after a nurse defied quarantine orders after treating Ebola patients in Sierra Leone. The legislation never moved out of the Assembly Health Committee and companion legislation was never introduced in the state Senate, but a social media furor late in 2021 prompted Perry to withdraw the legislation and prompted a response from Richard Gottfried, D-New York City and Assembly Health Committee chairman, who said the legislation had no chance of making it onto a state Assembly Health Committee agenda, which is required to bring the bill to the Assembly floor.

“It’s actually been around for years, long before the pandemic,” Borrello said of Perry’s proposal. “And it basically would give power to public health officials to isolate and quarantine someone without due process. And where did that bill go? It went nowhere. In fact the sponsor finally pulled it recently because of all the backlash and the controversy. So now essentially the governor is taking most of the language from Assembly Bill 416 and trying to maker it a permanent part of the New York State Department of Health regulations. This is a bill that was not popular, obviously, and never had a matching piece in the Senate, and now the governor wants to make this law. It is a clear violation of the separation of powers.”

Dozens of state legislators signed a letter to the Health Department, Hochul and Bassett in early February asking them to stop the adoption of the proposed regulations because it circumvented the legislative process. The lawmakers also argued that the governor and Health Department don’t have such expansive rulemaking power since the expiration of Executive Order 202 on March 3, 2020. That order gave the governor the power to supercede or modify any statute, local law, ordinance, rule or regulation, but that power was ended in March 2021 when the state Legislature amended Executive Law Section 29-a to repeal the governor’s authority to issue executive orders during disaster emergencies. Borrello and the other Republican lawmakers say there is no current executive order allowing the isolation and quarantine procedures to become law.

“During the pandemic we saw the absolute breakdown of the separation of powers here in New York state,” Borrello said. “Unfortunately many of our colleagues were accomplices in that, creating a dictatorship in the name of public health and safety. We have seen the fallout of that time after time. But now we have a new issue. This whole absolute power, the governor taking on the role not only of the executive but of the legislative branch, is continuing on. In this case it’s far worse because it’s being done largely below the radar by the Department of Health to promulgate rules that are a clear violation of the separation of powers.”