The state Health Department is punching back against a lawsuit filed by Sen. George Borrello and two other state legislators, accusing the legislators of fear-mongering while defending the state’s proposed isolation and quarantine rules as necessary to deal with a “pressing, severe and evolving public health crisis.”

Attorneys David Sleight and Stephanie Calhoun, assistant state attorneys general from Buffalo, filed responses to Borrello’s lawsuit late last week. In the memorandum of law answering the filing by Borrello, Assemblyman Chris Tague and Assemblyman Michael Lawler, the state argues the lawsuit should be dismissed because Borrello, Tague and Lawler don’t have standing to sue, they haven’t been harmed by the state’s action, the proposed new rules don’t exceed the scope of the Health Department’s authority and because the proposed regulation has a rational basis and its enactment wasn’t arbitrary.

“Once an agency has articulated a basis for its emergency rulemaking, the standard of review is not whether a court would conclude that an emergency exists; the question is whether the agency’s determination was irrational, arbitrary or capricious,” Calhoun and Sleight wrote in their memorandum. “If DOH could reasonably find that emergency circumstances required a departure from ordinary rulemaking procedures, the action should be upheld. The subject regulation was adopted based on determinations by DOH that it was necessary to address an ongoing public health crisis. The continued rising infection rates directly correlate to the urgent nature of enacting this emergency regulation. These considerations provided a rational basis for the promulgation of 10 N.Y.C.R.R. Section 2.13 and Respondents complied with SAPA in doing so.”

The Attorney General’s office wrote that COVID-19’s toll on New York would have been higher than the 70,488 state deaths had the state not taken aggressive action. The spike in cases in late 2020 and early 2021, the 2021 spread of the omicron variant and the BA.2 variant causing a spike in cases now are reasons the state should have expansive isolation and quarantine rules, the lawyers argue.

Positive COVID cases have begun increasing since last week, with Western New York showing higher positive test results than the rest of the state.

“As is discussed above, the state is still faced with a pressing, severe and evolving public health crisis in the form of an ongoing viral pandemic which has thus far caused the confirmed deaths of many millions of people worldwide, almost a million Americans, and currently continues to kill hundreds more people every single day in this country,” Sleight and Calhoun wrote. “On the other hand, petitioners’ claims of alleged irreparable injury are speculative, conclusory and in any event, do not outweigh the public interest with regard to such a significant crisis. Whatever alleged generalized harm petitioners claim they may suffer is, on balance, outweighed by the compelling interest in protecting public health and the lives of other, innocent people.”

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. 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.

Calhoun and Sleight say Borrello, Lawler and Tague are painting a grim picture of what the state terms is a legal administrative attempt to give the state the authority it needs to control COVID-19.

“Throughout their submissions in this proceeding, Petitioners try and paint Section 2.13 as creating some kind of dystopian nightmare where agents of the state are rounding up people suspected of having COVID-19 and throwing them into a gulag never to be seen again,” Calhoun and Sleight wrote. “This is nonsense. The state is not running “Covid Isolation facilities” as petitioners allege. Petitioner has not alleged one instance where a New Yorker has been involuntarily forced into isolation or quarantine. Instead, the DOH has issued common sense recommendations about what to do if you test positive for COVID-19 or were exposed to someone who has COVID-19.”