Governor Vetoes Broad COVID Response Bill, as “Turn Back The Clock”

Governor Hogan has vetoed SB 741, a bill that evolved and passed through the late stages of the 2021 Legislative Session to prescribe a plan for COVID testing, tracing, and vaccination in the next two years. If the bill is not taken up for an override until January, much of its intended effect may be mooted.

SB 741moved through the General Assembly in March and April of 2021, as legislators were persuaded by the need for a new framework for State response to the coronavirus crisis. The final bill called for a lengthy series of new plans and objectives, and details specific funding amounts for anticipated federal distributions, including substantial funds to flow through Local Health Departments and county governments.

From the bill’s final fiscal and policy note:

This emergency bill requires the Maryland Department of Health (MDH), in collaboration with local health departments (LHDs) and the Maryland State Department of Education (MSDE), to adopt and implement a twoyear plan to respond to COVID19 by June1,2021. The plan must include specified measures. MDH must also develop and submit a comprehensive COVID19 vaccination plan and convene a Maryland Public Health Modernization Workgroup. MDH must provide specified funding to local jurisdictions, assisted living programs, home health agencies, and nursing homes. Each assisted living program, home health agency, nursing home, and specified institutions of higher education must adopt and implement a specified COVID19 plan. The bill also mandates health insurance coverage of COVID19 testing and administration without costsharing. Any funding appropriated under the bill may consist only of specified federal funds.

The specific component providing grants to county governments required funding in both the current year (i.e. this month) and FY 2022:

Grants to Local Jurisdictions

In both fiscal 2021 and 2022, MDH must provide local jurisdictions with (1) at least $25.0 million in grants to expand capacity for COVID-19 testing, contact tracing, or any other public health purpose related to COVID-19 response for which federal funding is authorized and (2) at least $15.0 million to vaccinate residents. Additional grant funding must be provided to local jurisdictions that elect to establish independent contact tracing programs.

MDH may use only specified federal funding to provide grants. Grant funding must be divided between local jurisdictions in proportion to their respective populations. MDH must provide additional grant funding to a local jurisdiction if the department determines that the initial allocation is not sufficient to meet the testing and contact tracing or vaccination needs of the local jurisdiction. A local jurisdiction may use grant funding for testing and contact tracing to expand COVID-19 testing capacity through direct testing or by contracting with other entities.

For fiscal 2021 and 2022, MDH must provide additional funding to local jurisdictions that elect to establish and implement an independent contact tracing program. The amount of funding provided for an independent contact tracing program must be equivalent to the cost per case amount provided under the State contact tracing contract.

The veto of the bill, and the body of law governing any retroactive effects of funding legislation (apparently even including those made retroactive by the timing of the veto/override process), mean that the FY 2021 effect of the bill is almost certainly eliminated. Only very swift action by the General Assembly through a special session (for which there is not indication for any plan) could revive any discussion of that component having any practical effect.

Local Health Departments, and county governments, are due to receive substantial amounts of both direct federal funding and flow-through state funds through the federal ARPA legislation, independent of this state legislation and its requirements.

The Governor’s veto message finds fault with the bill:

In addition to raising questions about the legality of mandating funds in the current and upcoming fiscal year (above) the full veto letter details the State’s ongoing efforts to combat the virus and promote vaccinations.

While the bill passed with an apparent veto-proof supermajority in the General Assembly, these timing issues – and the apparent likelihood that an override vote would only be taken up in January of 2022, render the likelihood of an override less obvious than many of the other bills vetoed by the Governor last week.

For a full summary of the Governor’s final wave of legislative vetoes, visit the Governor’s website.

Michael Sanderson

Executive Director Maryland Association of Counties
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