A legal challenge of the state’s new disease isolation and quarantine rules could be decided any day in state Supreme Court in Little Valley.

Oral arguments in George M. Borrello et al v. Kathleen C. Hochul et al were held Friday, May 27, before Judge Ronald Ploetz. A decision could be handed down any time.

The state Health Department had originally proposed the new rules in late 2021 as part of an administrative rulemaking. In addition to Hochul, Mary Bassett, state health commissioner, the state Health Department and the state Public Health and Health Planning Council are named in the lawsuit.

Among the changes being fought is 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.

Specifically, an isolation or quarantine order would be required to specify the basis for the order, the location the person is to isolate or quarantine unless travel is authorized — such as for medical care; the length of the order; and instructions to prevent transmission to people living or working at the isolation or quarantine location. The new guidance includes the right to request the public health authority issuing the order inform a reasonable number of people of the order, a statement the person has the right to seek judicial review of the order and a statement that the person has the right to legal counsel, including public defense.

Also spelled out is authority for public health bodies to monitor people to make sure they are complying with an isolation or quarantine order to determine if the person needs additional medical care; coordination with local law enforcement to make sure people comply with the order; and provision of food, laundry, medical care and medications if they are not otherwise available. Any person who violates a public health order shall be subject to all civil and criminal penalties as provided for by law. For purposes of civil penalties, each day the order is violated is a separate violation.

Sen. George Borrello, R-Sunset Bay, was among the legislators to file a lawsuit over the regulations along with Assemblymen Chris Tague and Michael Lawler and Uniting NYS. Assemblymen Andrew Goodell and Joe Giglio were permitted to file an amicus curie brief in the case over the state’s objection. 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 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 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.

“Ironically, the Perry legislation contained many more procedural and due process protections than the new Health Department regulations, including limiting its applicability to a declared state of emergency, requiring ‘clear and convincing evidence’ of the danger posed by the individual, requiring the Health Department to act with “due diligence” to verify whether the person was actually infected, requiring an administrative hearing within three business days, and requiring a court order for any detention exceeding five days,” Goodell wrote in his brief. “None of these due process protections are contained in the new Health Department regulations. Although administrative regulations play an important role in fleshing out the details needed to administer statutory provisions, these regulations must be within the scope of the legislative grant. Administrative agencies do not have the Constitutional authority to make their own laws, expand their own power, or circumvent existing laws. Only the state Legislature can change the statutory procedures, not the Health Department.”