Advocacy group, parents sue Michigan's health director over youth sports COVID rules

Christine Ferretti
The Detroit News

A advocacy group for student athletes and several parents are suing Michigan's health director over new COVID-19 rules and testing procedures for teenage youth sports, arguing they are "invalid" and violate due process rights.

The Honigman Law Firm filed suit Thursday in Lansing on behalf of Let Them Play Michigan and three parents individually suing for their children against state Health and Human Services Department Director Elizabeth Hertel. The legal actions come in response to the March 19 order from Hertel's department and a subsequent guidance for student athlete testing for the coronavirus.

High school athletes and parents gathered on the Capitol lawn Friday, Aug. 28, 2020 to protest changes to the high school athletic season during a "Let them play" rally.

"As a direct consequence of MDHHS’s violations of their due process rights, Plaintiffs have suffered incalculable damages," the filing reads. "Plaintiffs have no adequate remedy at law for this continuing violation of their constitutional rights."

Michigan health officials on March 19 issued the new epidemic order requiring rapid testing for all youth athletes ages 13-19 beginning Friday. The mandate is to apply for winter sports that are still being played and upcoming spring sports for middle schoolers through high schoolers. It also applies to club sports for teenagers.

The state provides the rapid tests, but the schools and clubs decide who performs the testing and reports the results to the state. School officials have said they expect the testing will provide challenges for schools to find enough staffers to ensure all of the testing requirements are followed and the proper paperwork is filed online.

Many schools already had been using the Abbott BinaxNOW rapid test kits the state received from the federal government to test high school athletes this winter and fall, state health officials said.

The nonprofit group noted in its Thursday filing that it sent a letter to the state health department on March 26, asking the state to clarify its legal authority for the March 20 testing guidance. 

The state, they contend, refused to identify the legal authority, but said the orders are "to be followed as directed by the emergency order."

Since the Michigan Supreme Court struck down the emergency orders of Gov. Gretchen Whitmer in October, the state Department of Health and Human Services has issued epidemic orders under the public health code. The Legislature granted the department the powers decades ago. 

The group and the parents argue the order is a violation of the Michigan Administrative Procedures Act. The act, the suit notes, lays out requirements for processing and publishing rules, which include regulatory approvals and providing notice of a public hearing for data to be presented and for views, questions and arguments to be shared. 

The orders, the plaintiffs contend, "were invalidly promulgated without any opportunity for public participation, in violation of the Michigan Administrative Procedures Act and the Michigan Constitution ... They are also substantively invalid as arbitrary and capricious under the MAPA."

Under the state guidelines, young athletes who test positive after a weekly rapid coronavirus test beginning Friday cannot return to practice or play on a team for the duration of their infection until they get a negative test.

Further, athletes who play contact sports but can't wear face masks because the face mask could get caught on objects, impair vision or become a choking hazard must test for the coronavirus before an unmasked activity up to three times weekly.

Young athletes also should be tested before they compete with another team.

Hertel, in a Thursday letter to Let Them Play enclosed with the filing, noted the interim guidance for athletics was issues "to offer mitigation measures against particular risks of each sport and the current rate of transmission (of the virus."

When emergency orders are issues, she wrote, the state health department expects them to be followed as directed.

State health department spokeswoman Lynn Sutfin said Thursday that the department does not comment on pending litigation. 

Honigman noted in a statement that although Let Them Play and the others "had hoped to avoid legal action, they were compelled to file a lawsuit to clarify whether the Guidance was validly announced and has any binding legal effect on student-athletes."