Arapahoe County has warned it is considering legal action against Douglas County over its decision to quickly leave the Tri-County Health Department and form its own health agency.

That's according to a letter, dated Froday, Sept. 3, from Arapahoe County's attorney to his Douglas County counterpart.

Arapahoe is asking Douglas to “slow the pace so all the stakeholders — the three counties plus Tri-County — can make any necessary transitions more efficiently and effectively, and so we can properly assess the cost and process of what we need to do next,” said Luc Hatlestad, spokesperson for Arapahoe County.

Tri-County is the public health agency for Adams, Arapahoe and Douglas counties.

Douglas County commissioners initially voted to leave the health department Sept. 1, just days after Tri-County’s Board of Health voted to no longer allow counties to opt out of public health orders and to impose an indoor mask mandate for all students and staff at schools within its three member counties.

The board is the policy-making body for Tri-County, composed of nine members — three each from Adams, Arapahoe and Douglas.

Douglas County formalized the decision to leave Tri-County in a special business meeting Tuesday.

In his Friday letter, Arapahoe County Attorney Ron Carl wrote to Douglas County Attorney Lance Ingalls that if Douglas moved forward with its own health department and that action has a “significant adverse impact” on Arapahoe County, Carl's county may pursue legal action to “invalidate the withdrawal,” according to a copy of the letter obtained by Colorado Community Media. 

Carl went on to say his county would challenge Douglas County’s decision on the grounds that “it is in violation” of the one-year advance notice requirement for leaving health departments in state law.

“In addition, Arapahoe County may also seek to have a court declare that Douglas County must continue to pay its statutory share of expenses for the Tri-County Health Department until such time as Douglas County is legally able to withdraw,” according to the letter.

In a Sept. 1 meeting of the Douglas County commissioners, the county attorney, Lance Ingalls, said that because Tri-County had recently voted to rescind option to opt out of the agency's health-safety orders — a negotiated agreement between the two entities — an earlier notification of withdrawal from the county, in July 2020, that had been put on hold was still intact, thereby satisfying the one-year-notice requirement.

In November 2020, Douglas County commissioners rescinded their notice of withdrawal after negotiating with Tri-County to remain with the department until at least January 2023 and to be allowed to opt out of any public health orders moving forward. 

Then, in August, Tri-County’s board of health voted to remove the opt-out option for counties, saying the policy had “severely limited” the ability of the health department to carry out its statutorily-required duties.

Two days later, Douglas County voted to again notify Tri-County that they would be leaving the health department, but this time, it would be immediate. 

In response to a request for comment on the letter from Arapahoe County, Ingalls said through a spokesperson that “this is a legal matter for which there is no response at this time.”

During Tuesday's meeting at which Douglas County commissioners formalized their exit from Tri-County Health, county Commissioner George Teal said he was “a little concerned” about how the county’s decision will impact other counties.

Douglas may look to Tri-County for services

In a newsletter to her constituents, Commissioner Lora Thomas included a copy of Carl's letter and said she told Arapahoe County Commissioner Nancy Sharpe that Douglas County may contract with Tri-County Health to continue its delivery of health services to Douglas County while still forming its own new board of health to oversee policies. 

She also said Douglas County would need the current Tri-County health board to approve that plan, according to Thomas’ newsletter. Hatlestad confirmed details of the conversation between Thomas and Sharpe.

Thomas said Douglas County has already paid Tri-County for services through 2021, arguing there should be no immediate financial impact on Arapahoe from Douglas' exit from Tri-County, according to the newsletter. Thomas also said Douglas would be willing to discuss contracting with Tri-County for services beyond the end of 2021.

In the newsletter, Thomas said Sharpe supported the model as described because, Thomas argued, it would not negatively impact Arapahoe financially, assuming the Tri-County health board allows the contract model to move forward.

Asked about Thomas' interpretation that a Douglas County contract with Tri-County Health would avoid a negative impact on Arapahoe financially, Hatlestad said: “I would say if that's true, that's great, but it's too soon to tell.”

Arapahoe officials want to have the commissioners of all three counties, and Tri-County Health officials, meet together, but “that’s obviously not something we can do overnight,” Hatlestad said.

Adams, Arapahoe may also split

In early September, Arapahoe County confirmed that Arapahoe and Adams counties had also been contemplating splitting away from Tri-County, driven by Douglas County's intention to leave.

By October, both the Arapahoe and the Adams county commissioners will be provided with findings from a transition team to inform a decision on a new structure for public health services, according to a statement from Arapahoe County.

Consultants are examining the scenarios of a two-county health agency or creating single-county health departments, Hatlestad said. 

He emphasized that Arapahoe County’s consideration of leaving Tri-County isn’t because of disagreement with the health agency. 

“We began looking at other public health agency options after Douglas announced its intentions to leave Tri-County last year,” Hatlestad said. “We did not initiate this because of any dissatisfaction with Tri-County — we’ve actually worked extremely well with them since the beginning of the pandemic.”