Acting state Secretary of Health Alison Beam's Aug. 31 order requiring all students and staff to wear face masks in schools to help prevent the spread of COVID-19 is a regulation that wasn't subject to regulatory review, and wearing masks is not among the disease control measures included in the Disease Control and Prevention Law of 1955 that she is allowed to order, according to arguments from a Butler lawyer to the Commonwealth Court Wednesday.

Butler attorney Tom Breth argued those points in Commonwealth Court in Harrisburg on behalf of parents seeking emergency relief from the mandate.

Karen Romano, chief deputy attorney general, countered Breth's arguments by saying wearing masks is a disease control measure and the order is not a regulation.

Representing parents of students attending Calvary Academy in Butler County and Hillcrest Christian Academy in Bethel Park, Allegheny County, Breth said the mask mandate meets the definition of a regulation, so it should have been vetted through the Attorney General Office's regulatory review process before it was enacted.

“Does she have the authority to make the order of Aug. 31?” Breth said.

The Disease Control and Prevention Law authorizes the secretary of health to impose disease control measures on people infected with a communicable disease, so the disease can be surveilled, but mask wearing is not one of those measures, he said. Some of the measures listed in the law are quarantine, segregation and isolation.

It's unprecedented, Breth said, to impose a regulation on healthy people.

He also argued that no emergency declaration from the governor was in place when the order was issued, and the secretary has had plenty of time to create a mask regulation through the process spelled out in the Regulatory Review Act.

Breth asked the panel of judges to decide whether the secretary was not following the constraints placed on the health department by the General Assembly.

Romano said the administrative code provides the secretary with clear authority to determine and deploy the most effective way to address communicable diseases, and to issue the order.

She said it is the duty of the health department to protect Pennsylvanians.

Wearing masks is a modified form of quarantine, Romano argued.

However, the judges noted that the law states that disease control measures can be imposed on people with a communicable disease, and a rule or regulation is needed for mandating masks in schools.

Romano maintained that the secretary has the authority to order mask wearing in schools.

The secretary must have broad discretion to address diseases that weren't contemplated by the Legislature when the law was enacted, she said.

The judges asked Romano why a rule or regulation wasn't made and why an emergency declaration wasn't issued.

Romano said the number of COVID-19 cases skyrocketed at the time the order was issued and the order was intended to prevent the spread of the virus. She said the secretary did not misuse her authority.

The court also heard religious objections to the face mask order from attorney J. Chadwick Schnee, who represents parents of students in the Central Bucks School District.

He made arguments similar to those made by Breth, but added that masking isn't being used to surveil people with COVID-19.

Schnee said the secretary's order does not include waivers based on religious beliefs for students.

The court will issue a ruling in the cases.