Politicians and business interests ignored health officials to control reopening. Cases exploded

Then came a shift in power, and priorities.

State legislators who felt Gov. Gary Herbert was not moving quickly enough to lift restrictions on businesses created a commission to set guidelines to reopen. "It's not meant to give economic outcomes a higher weight, but it is time to give them some weight," said Sen. Daniel Hemmert, a Republican who sponsored the bill and took his seat on the commission alongside other politicians, bureaucrats and business leaders.

Email correspondence and interviews with more than a dozen state and local officials in Utah show that the health of the state's businesses was prioritized over the health of the public, as officials stopped slowing the spread of the virus and instead calculated how many sick people its health system could bear.

Dr. Joseph Miner, executive director of the Utah Department of Health, told ProPublica that state leaders originally planned to relax restrictions as cases decreased. But "because of the concern that you can't keep the economy closed this long," they reopened before that happened and shifted their attention to how many cases hospitals and contact tracers could handle.

"We know there's going to be increased cases. We just said, amongst ourselves, this is really what we're addressing: our capacity to respond rather than decreasing numbers."

With key health experts cut out of the decision-making process, including the state epidemiologist and local officials who were stripped of their ability to issue their own restrictions, the governor and the commission quickly swept aside restrictions meant to slow the virus's advance in Utah. You can now hold indoor events with up to 3,000 people and outdoor events with up to 6,000. You can drink at bars, eat in restaurants and go to the movies.

People in Utah are going back to work; new unemployment claims from early July dropped 78% since the peak from early April, when most businesses were closed, and its unemployment rate is just above 5%, which is under half of the national average. Utah was considered one of the states best-prepared to weather the pandemic's economic downturn. But experts say that rising infections could threaten any state's recovery.

And in Utah, infections are rising. The percentage of tests that come back positive is at 10% as of July 13, compared with 3% to 5% in April. On July 14, the state reported its highest number of deaths on a single day since the pandemic began. Since late May, the seven-day average of daily case counts statewide has quadrupled.

Utah's story is mirrored in states across the country, where leaders sidelined public health experts and forged ahead without meeting criteria scientists say are necessary to reopen. In Florida, the governor loosened restrictions as cases rose; Miami is now the national epicenter of the virus. Georgia left it up to businesses to decide how much to scale back service in the middle of a pandemic; South Carolina let the hospitality industry write its own reopening guidelines. The virus is now spreading uncontrolled in those two states, with some of the highest rates in the country. Texas, whose governor took advice on reopening from a panel stacked with corporate executives and business leaders, reopened restaurants and malls after reaching a record in daily deaths; its hospitals are now stretched to the brink.

Herbert's office did not respond to questions about how he's managed the pandemic. In an emailed statement, Jefferson Burton, the commission's co-chair, said the group regularly reviews Utah's reopening guidelines and makes changes based on new data, federal guidance and input from stakeholders. Decisions on when to lift restrictions are based on hospital utilization, infection growth rates and the number of tests performed, among other factors, the statement said. "There are not hard-and-fast data points that automatically trigger a move. … Rather, individual geographic areas are evaluated looking at their specific trends over time."

Dr. Michael Good, CEO of University of Utah Health and the only physician on the commission, said the "goal has always been to slow the spread of the virus." The commission is trying to balance decisions on reopening in a way that keeps infections low while not inadvertently causing other social and economic problems, he said.

Epidemiologists say that one of the biggest risks of reopening prematurely is that it suggests formerly banned activities are now safe. The family of a diabetic man who died after going to a party in Riverside County, California, said he had been careful until the government eased restrictions.

The timing of Utah's spikes in cases clearly overlaps with the loosening of restrictions, said Dr. Emily Spivak, an infectious disease physician at University of Utah Health. People assumed the risk was over. Spivak has seen group barbecues and young people taking party trips to Lake Powell with "full-on 20-year-old summer social behavior." Of course case numbers went up, she added. "It's not rocket science."

A shift in power

Initially, Utah acted decisively to try and stop the spread of the coronavirus. In March, working with health advisers, Herbert decided to shut down schools days before New York City and restricted businesses based on their level of risk. Restaurants could not offer dine-in service; gyms and salons were closed.

While Herbert refused to issue a statewide shutdown, saying he didn't want to overrestrict less affected areas, mayors and local health officials wrote their own stay-at-home orders, which came with fines and even criminal penalties for violations. The state was a patchwork of legally binding rules, as The Salt Lake Tribune reported. "We give local control for the regional differences," Herbert said at the time, "and I think we've struck the right balance."

Senate President Stuart Adams, a Republican businessman, disagreed. On April 8, he confirmed that lawmakers would convene to address the pandemic and consider limiting the power of local governments, saying their rules were creating confusion. It was time, he told the local paper in Ogden, for "a new phase" focused on the economy.

Sen. Hemmert and Rep. Mike Schultz co-sponsored a bill to establish the Public Health and Economic Emergency Commission, a 10-member team that would guide the reopening and advise Herbert. Staff from the Governor's Office of Management and Budget would provide support.

Apart from two health care system CEOs, none of the members had a medical or public health background. Among them: Adams, the two Republican legislators who sponsored the bill, the president and CEO of the Salt Lake Chamber of Commerce and the CEO of the Larry H. Miller Group of Companies, which includes sports teams such as the Utah Jazz as well as a chain of Megaplex Theatres across the state.

By the time the commission assembled, there was a new leader in charge of the state's coronavirus response.

Miner, a physician who had headed the state Health Department since 2015, has a lung condition and had been unable to attend in-person meetings. To be the "boots on the ground" for the the virus response, the governor appointed Burton, a retired military leader with no medical training who had experience in disaster management. Burton once headed Utah's National Guard and is running for a seat in the state House of Representatives. While Miner said he has remained "very much involved," he was not present, even virtually, for key decisions ProPublica asked about. He said he was briefed on outcomes by Burton's deputy.

During the time that Burton has served as co-chair of the commission, the three legislators on the commission have donated (either personally or through their campaigns) a total of $4,000 toward his run for state office, one-fifth of what his campaign has raised. He won the Republican primary in June and has no Democratic challenger in the general election.

The governor's office and a large team of advisers had createda color-coded system for reopening that could be turned up or down like a dial "based on the health risk." The system had four levels that dictated how businesses could operate, labeled red ("high risk"), orange ("moderate risk"), yellow ("low risk") and green ("new normal risk"). All of Utah was under the red designation in late April; each successive level would open more businesses and ease limitations.

The commission took the governor's guidelines and added specific rules for every industry, including restaurants, schools, entertainment venues and religious services. Five days after the group was created, it recommended moving the state to orange.

Herbert accepted the plan and moved Utah to the "moderate risk" level on May 1. Hotels and gyms opened. Groups of 20 could congregate with masks and social distancing.

Another shift in "risk"

Guidelines from the Centers for Disease Control and Prevention say one of the key factors for relaxing restrictions is evidence of a 14-day decline in new cases.

By May 12, cities and counties were expressing an interest in moving into the yellow, "low risk" level. Cases had plateaued, but had not dropped. Dr. Angela Dunn, the state epidemiologist, told KSL News Radio that on an "optimistic" timeline, some parts of the state might be ready to move into yellow on June 1.

But on May 14, just 13 days after moving the state into orange, the governor and the commission announced they were moving most of the state into the "low risk" level, on May 16. It was impossible to see, at that point, the full effects of the orange phase after half a month, because of the incubation period of the virus and the lag between symptoms, testing and test results.

Jenny Wilson, the mayor of Salt Lake County, petitioned to keep her county in orange; she noted that the active positive case rate there was several times higher than the state's. She could have kept the restrictions before the bill creating the commission passed, but now she needed the governor's approval. Herbert denied the appeal, but he approved similar petitions from the two largest cities in her county — Salt Lake City and West Valley City — and three other counties.

The rest of the state relaxed further into the phase labeled "low risk." All businesses could resume with certain precautions. Public swimming pools opened; close-contact team sports were allowed with temperature checks. Restaurants could serve buffets.

"Speaking [with] my public health voice, I feel that this is a mistake," Jennifer Dailey-Provost, a Democratic state representative who's pursuing a doctorate in public health, tweeted in reaction. "To say I'm frightened is an understatement. I hope I'm wrong."

Two weeks later, on May 27, cases began to surge.

A spokesman from the Salt Lake County Health Department said it's hard to say if the county would have fewer cases today if the entire county (and not just two cities) had stayed in orange. Commuting patterns make it impossible to separate different municipalities, and the piecemeal approach left some streets orange on one side and yellow on the other.

County data shows that throughout June, on days with a particularly high number of new cases, more than half came from areas that went yellow before the mayor felt they were ready.

Salt Lake City Mayor Erin Mendenhall said the commission has made it more cumbersome for local leaders to pass their own rules, but she gives the governor credit for allowing her city to remain in orange and approving the county's mandate for wearing face masks in public.

One of the counties Herbert had allowed to stay in orange was Grand County, home to Arches National Park. But that changed on May 28. When local officials asked to maintain extra protections as they moved to yellow — such as leaving hotel rooms empty for 24 hours between bookings — the governor's office denied the request.

The rural county has logged few cases, though it is impossible to tell how many tourists may have caught the virus there before returning home. Bradon Bradford, director of the Southeast Utah Health Department, which covers Grand County, said the local numbers started going up in July.

The commission's top-down approach is "uncharacteristic" of Utah, said Kirk Benge, who leads the Public Health Department for San Juan County in the southeastern corner of the state. "Most politicians claim that they like local authority and they like local decisions. In an emergency, to immediately strip that … I felt, was a mistake at the time."

A mysterious decision

Top health officials and other legislators have little insight into the commission's actions. Miner told ProPublica he has never attended a meeting. Nor has Dunn, the state epidemiologist. Both are part of a work group that provides input on what activities are allowed under each phase, but they aren't involved in the final decisions of when and how restrictions are loosened.

Dailey-Provost, the legislator with public health training, said her offers to help and suggest health experts went nowhere. She co-authored a study in April that predicted how coronavirus cases would peak in Utah. Reality has outstripped the study's worst projections.

One of the commission's most significant decisions occurred in late May, when they suggested redefining the yellow phase, which capped gatherings at 50 people, to allow indoor gatherings of 3,000 and outdoor gatherings of 6,000.

The proposal caught Dunn and other health officials off guard. They discussed it at their work group meeting of health and business experts. Burton's deputy, Richard Saunders, who often attends commission meetings, was also present.

Benge, the health officer for San Juan County, said he was "100% against" the change. Many businesses were still transitioning into the yellow phase and hadn't had time to open up, Benge said, so it was too early to loosen the guidelines any further. Dunn and Miner shared similar concerns.

Miner said he recalls the group was being asked to figure out how to implement the change as safely as possible. He said they concluded that if the venues were required to track where everyone sat, at least they could do contact tracing if anyone got sick.

The numbers were headed in the wrong direction. A day earlier, on May 28, the Tribune reported the biggest single-day spike in new cases statewide, as well as an outbreak in a nursing facility that infected more than half the residents. One county in northern Utah saw a 33% increase in cases.

Health officers fretted about the decision in emails released to ProPublica.

"This change happened on a timeline contrary to my recommendations and the recommendations of the state epidemiologist and other health officers," Benge wrote to his county health board.

"I don't think we'll need to move to Green because it's all being phased into Yellow," Bradford wrote to other local health officials.

"So who is going to count to see when they reach 6001 participants?" another officer replied.

Herbert accepted the commission's changes in June.

Jordan Mathis, the officer for the TriCounty Health Department that oversees Daggett, Duchesne and Uintah counties, said the numbers seemed arbitrary. "Why 3,000? Why 6,000? Where'd we pull those from?"

Good, the commission member, said he doesn't recall the exact reasons behind those numbers, but those discussions "were occurring at a time when 999 out of 1,000 Utahns did not have a coronavirus infection," he said. Today, the situation is more serious, with four times as many active cases as there were back then, he said. "Those are not the conversations we would be having today."

Brian Hatch, the health officer for Davis County, sits on a medical team that is supposed to advise the commission. He doesn't recall the commission ever asking for its advice on the phase guidelines. The medical team has focused on recommendations for high-risk residents who are especially vulnerable to COVID-19.

Hatch said the idea for 6,000 people outdoors might have come from his county. When the state moved to yellow, there was no reopening plan for Lagoon Amusement Park, the only amusement park in the state. The park owners worked with Hatch. They settled on 6,000 people, which is 15% of its usual capacity. With social distancing, mandated masks and other precautions like timed tickets, they could operate safely, Hatch said.

The park reopened Memorial Day weekend with the governor's approval, a week before the commission meeting on May 29. A spokesman for the park said it reached the 6,000-person limit only a few times since opening. Hatch said there have been no outbreaks connected to the park, and having a large crowd dispersed outdoors is very different from cramming 3,000 spectators indoors. Since the risk of infection is much higher inside, "I'm concerned with 20 people together," he said.

Hatch said he doesn't know where the 3,000 number came from. Health officials couldn't point to any recent events with thousands gathered indoors. A spokeswoman for the Larry H. Miller Group, whose CEO sits on the commission, said the company's movie theaters have kept indoor crowds at 50 and have not hosted any sporting events at their large venues.

The indoor guidelines require assigned seating (to enable contact tracing) and masks whenever social distancing isn't possible.

Dunn and Benge said masks alone aren't enough. Masks need to be used in concert with distancing and hand washing, said Dr. Georges Benjamin, executive director of the American Public Health Association. "(The commission is) using the masks as an excuse to break all the other science rules."

The high risk of "low risk"

Shortly after the May 29 meeting where the work group discussed the changes to the yellow guidelines, the commission held its own meeting.

According to meeting minutes, the commission wanted to determine how and when the state could switch to green, the "new normal." One of the people present was Burton's deputy, Saunders, who had just attended the work group meeting with Dunn and Miner.

Saunders told commission members that the potential impact from recent events — including Memorial Day celebrations and the opening of the amusement park — would become clear in the coming week. He said epidemiologists in the state Health Department advised staying at yellow until June 30.

Adams motioned to move most of the state to green by June 5, as long as the data supported it. The transition meant large crowds could gather without assigned seating. Religious services would no longer require 6 feet of space between families and sports competitions could resume.

The six commission members who were present voted unanimously for the idea. They waited several days to announce the news.

Utah had cycled through two phase changes in one month. Dunn worried residents saw it as permission to abandon precautions like masks. After all, the yellow phase was labeled "low risk."

"I am concerned that we are providing the public with false information regarding their risk for contracting COVID-19," she wrote to Miner, Burton and others on June 1. "Our % positive is at 7%, just a short jump away from the 8% positive at the beginning of this outbreak when we were only testing hospitalized patients. Our growth rate is sharply increasing."

The very next day, the commission said the state was ready to go to green.

When Benge heard the news, he told colleagues he was "concerned that the current 'Phased Health Guidelines' have gradually shifted at the state level, from being focused on protecting health to being more focused on protecting the economy."

The commission acknowledged coronavirus cases "may continue to rise" as restrictions are lifted. But case numbers are "a poor indicator of health risk for all Utahns," as 99% of COVID-19 patients recover, they said in a press release that cited low hospitalization rates, low death rates and increased testing and contact tracing. They called for a "smart" green level where everyone should still wear masks and stay socially distant.

They didn't mention the racial disparities that persisted throughout the pandemic. Fourteen percent of Utah's population is Latino, but they make up 40% of cases. The proportion of patients who die from the virus is three times as high for Native Americans as it is for white residents. Navajo Nation, which extends into Utah, Arizona and New Mexico, recently imposed stay-at-home orders over several weekends because of the worsening situation in surrounding areas. Most of the roads leading to Utah's national parks go through the reservation, said Pete Sands, a spokesman for Utah Navajo Health Systems. So when residents or visitors refuse to take precautions, it directly affects Navajo citizens.

Too many states are letting their cases grow based only on health care capacity, said Benjamin, the American Public Health Association director. "Why open the economy and allow needless death and illness and disability … [when] this single-minded strategy is eroding the economy in the long term?" he said. "Sick people can't work. People who are afraid to go out and shop [or] eat aren't going to go out."

Experts say there's more at play than ensuring hospital beds; workers face personal protective equipment shortages and burnout. There's no surefire way to prevent COVID-19 deaths, and many survivors are left with heart damage, scarred lungs, neurological problems and other long-term effects doctors are just beginning to understand.

A day after the commission's announcement on June 2, Dunn told reporters that no community in Utah was ready for green.

Herbert waited until June 12 before moving one county to green. A week later, he approved requests from nine other counties to do the same.

As Herbert finalized the partial shift to green, Dunn sent an urgent memo to state and local health officials, which the Tribune published several days later on June 22.

"If we do not reach a rolling 7-day average of 200 [cases] per day by July 1, we need to move the entire state to orange," Dunn wrote. "This will send the message to Utahns that this outbreak continues to be a serious problem."

"This might be our last chance for course correction," she warned. "Contact tracing and testing alone will not control this outbreak."

Dunn recommended a statewide requirement for face masks. If that wasn't possible, she wrote, "we need to be clear with the public about why decisions are being made lessening restrictions — economic, not health."

Herbert said he appreciated Dunn's analysis but would not close down the economy. The seven-day average stood at 485 cases per day.

Beyond capacity

By mid-July, the seven-day average had reached 650 cases per day.

A growing number of health and business interests want a statewide mask mandate. That includes the Salt Lake Chamber of Commerce and the Larry H. Miller Group, whose leaders sit on the commission. Adams has come out against the idea.

Herbert has required masks in state buildings and in K-12 schools starting this fall but stopped short of a blanket rule, citing individual freedom and local control. The issue has become so politicized in Utah that one county commissioner compared the idea of a mask mandate to Nazism. In Provo, residents crowded into a county commission meeting to protest the school mask requirement.

Darin Mellott, a real estate executive who serves on a separate economic task force on the pandemic, describes himself as an establishment Republican. But he personally feels masks are an easy way to stem the tide. "I think future generations, if we do nothing, are going to look back and say, 'Why did you subject so many people … to this threat, because of some imagined threat to our liberty?'"

Mellott said Herbert has a tough balancing act — "I think we would be in a much worse situation if it weren't for him" — but that the governor and other state leaders need to give more health professionals a seat at the table. "This is a war against the virus, and the medical professionals are the generals," he said. "So listen to the generals."

In a recent press conference, Herbert acknowledged that labeling the different phases based on risk might have given the public a false sense of security. He challenged residents to voluntarily wear masks and set a goal to keep average new cases below 500 a day by August 1. Herbert cited 800 a day as the absolute maximum the state can handle.

Dunn told ProPublica she suggested 200 cases a day because it allows the state to do contact tracing within 24 hours. Because of the lag time between infections and hospitalizations, any preventative measures taken today won't have an effect for another two to four weeks, so there's no time to lose. "You can't wait until you're already underwater," she said.

The state is hiring more contact tracers, but can now handle only 300 cases a day.

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