Changes to vaccination bill still leave hospitals in a tough position

Employers can ask about vaccinations, but can’t require them

By: - April 29, 2021 4:14 pm

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The problem is easy for Rich Rasmussen to explain. The solution? Well, that’s the hard part.

Rasmussen is the chief executive officer of the Montana Hospitals Association, and he was part of a coalition that advocated changing a controversial bill, House Bill 702, to make it so that nursing homes, care facilities and hospitals would not have to go into permanent pandemic mode, restricting visitors and wearing masks at all times.

“We appreciate the governor making a deep dive to try to change this,” Rasmussen said.

However, the bill, which deals with all vaccination, not just COVID-19, still appears to put hospitals in difficult positions.

Rasmussen gave the Daily Montanan this simple illustration: On Monday, hospitals could require employees to get vaccinations in order to work; on Thursday, with the passage of HB702, hospitals could no longer require any vaccination.

While the Legislature made several large changes to HB702 after Gov. Greg Gianforte gave it an amendatory veto with concerns about how the law would affect nursing homes, hospitals and assisted-living facilities, lawmakers retooled some sections and left others intact. For example, as long as the federal regulation requires vaccinations for skilled-care nursing, those facilities can continue to require it. However, the same concessions weren’t given to hospitals.

With the changes, hospitals are now allowed to require unvaccinated staff members to wear a mask, a practice that would have been considered discriminatory under HB702’s original wording. Now, hospitals can ask about vaccines, but they still cannot require vaccination as part of employment. Rasmussen said that puts hospitals in the tricky position of knowing which employees are vaccinated but being powerless to do anything about it.

“This isn’t about COVID, it’s about all vaccines,” Rasmussen said.

Rasmussen said that hospitals often deal with vulnerable groups of people, just like nursing homes. He gave the example of infants in neonatal intensive care and patients undergoing chemotherapy.

Masks are also going to take on new meaning. While an employer can require mask wearing, it may not be effective for some diseases. Moreover, when patients see a staff member wearing masks, it won’t be clear if they haven’t had their COVID-19 vaccine, or if they have something more serious and could be spreading whooping cough or chicken pox.

“We can no longer ensure our highest level of protection if we can’t guarantee all are vaccinated,” Rasmussen said.

The law still creates liability for hospitals in another situation. For example, if they learn someone is not vaccinated and is the best candidate for a job, they are forced to discriminate against that applicant by not offering the job, or opening themselves up to putting patients at risk. Rasmussen explained both are problematic and could potentially result in lawsuits and millions in damages.

One of the other logistical challenges is recruiting healthcare providers who want to work in a setting where vaccination is questionable.

“It’s so hard to recruit that all hospitals want to ensure a pristine clinical environment,” Rasmussen said. “By the same token, it’s highly competitive for recruitment, and they may not want to come to a place where we may not be able to ensure a high level of safety.”

Finally, some of the rural, critical-access hospitals serve a dual purpose, having “swing beds” where staff is caring for both hospital patients and nursing home residents, meaning the HB702 is liable to cause confusion for facilities.

Already, insurance carriers for hospitals are beginning to recalculate, which could lead to rising costs for healthcare centers and, in turn, higher rates for patients, Rasmussen said.

“We’ve taken the position that everyone must be vaccinated, so insurance companies can net that risk out. Now, you can’t,” he said.

Not only will insurance cost more because hospitals may face more charges of discriminatory hiring practices, but if a patient becomes sick with a communicable disease, like chicken pox, and an investigator can tie it back to the hospital staff, hospitals may face lawsuits for not protecting patients.

“This creates an opportunity for exposure,” Rasmussen said.

Currently, lawyers from different organizations are meeting to consider what options the hospitals have to protect themselves, or what challenges could be mounted.

“We don’t want to see dust-ups on vaccination. We just want to operate like we did on Monday,” Rasmussen said.

He said that already hospitals are allowed to take steps to prevent contagious pathogens like MRSA and c.difficile. He questions why hospitals can’t take the same precautions with measles or whooping cough.

“There’s a risk of this bill undermining the trust that people have in our medical and healthcare system,” said Katy Peterson, Vice President of the Montana Hospital Association. “People just assume the highest level of care and a commitment to safest practices.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.