With new laws restricting public health, officials try to navigate rising COVID cases

‘There are a lot of different interpretations’

By: - August 22, 2021 9:15 am

A map by the Montana Department of Health and Human Services which shows a county-by-county map of active COVID cases on Aug. 21, 2021 (Montana DPHHS).

With a raft of new laws governing public health officials, employers and health care workers, leaders from around the state are trying to figure out what the new laws mean without violating personal freedoms and trying to maintain public health.

For example, House Bill 702 makes it illegal for an employer to require a vaccine, a sharp shift from where hospitals and doctors’ offices were a year ago when they could mandate that from their employees, with few exceptions.

Today, hospitals can’t require vaccines, COVID-19 or otherwise, but nursing homes can in some cases. Schools can require vaccines for students attending public schools, and some districts are requiring masks, while others aren’t.

Meanwhile, House Bill 257 says that the government cannot come between businesses and their customers – a measure so broad that attorneys and public health officials are uncertain how far those rules can be extended. For example, if a health department tries to close a business because it’s unsanitary, isn’t that getting between a business and its customer?

And House Bill 121 also stripped local health boards of the authority to mandate masks or issue shelter-in-place orders, transferring that to elected local leaders, mainly the county commissioners. However, taken together, some county officials may be concerned that anything that interferes with business and their customers could be grounds for a lawsuit.

While the three bills – 121, 257 and 702 – are fairly short, the language is broad and is leaving some officials concerned.

“The challenge is that there are a lot of different interpretations,” said John Felton, the Chief Executive Officer of Riverstone Health, which covers Yellowstone County, Montana’s most populous.

For example, if a department wants to “decompress,” or limit the number of people in a restaurant to allow social distancing, it must go through the governing body. But in Yellowstone County, there are a number of those, including the Yellowstone County Commission, the Laurel City Council and the Billings City Council. Even then, HB257 says that a government cannot come between a business and its customers, meaning that even the elected officials could be powerless to enact such a mandate without possibly inviting a lawsuit.

“You get into this loop that is unlikely to be solved until you have a court case,” Felton said.

And there are ripples – for example, can a local fire department set occupancy codes or can a health department shutter a business that is serving food in an unsanitary way because that is an example of government coming between a business and its customers?

“I honestly don’t know,” Felton said. “I’d say we’d shut them down and do the right thing to protect the public, and we’d have to fight it out in court. It’s what do you want to defend, and I’d rather keep the public safe.”

Felton said he doesn’t believe lawmakers during the 2021 session wanted the public to be put in harm’s way, but with broad language, it’s hard to find the line between law and legislative intent.

“I don’t know what it means,” Felton said. “The language is so broad that none of us understand or even agree with what they mean.”

Rep. Jedediah Hinkle, R-Belgrade, was the sponsor of HB257 which prohibits the government from standing in the way of customers and business. He said the law is clearer than most are making it – it prohibits widespread “governmental taking” of business without compensation, but shouldn’t stand in the way of health departments or even elected leaders making responsible choices.

He said no one – health boards included – should be able to come in and shut down part of a business without compensation, for example when health boards reduced occupancy or closed certain businesses like bars or restaurants.

“This mirrors the doctrine of government taking without just compensation,” Hinkle said.

He said it also protects places of worship and freedom of religion from being regulated by non-elected officials.

However, he said an early amendment to the law should allow county health boards to do things like sanitation inspections. He also said that the new laws are meant to impose limits on boards of health where previously there were none, not to stop them.

“I was never approached during the session by the (Montana Association of Counties). No one came to me with other concerns,” Hinkle said.

He said the law puts the power back where it should be – in the hands of elected officials.

“Both in 121 and 257 there was no accountability of the health boards and they could do anything they wanted as unelected officials,” he said.

He told the Daily Montanan the proper role of the health boards is to make recommendations based upon science, for example urging vaccinations or masking, and it’s up to them to convince elected leaders if there are further measures that need to be taken.

“We’re all smart people and all should understand masks and vaccines and social distance and personal choice,” Hinkle said. “But you also have to consider that if you have a restaurant packed with people, you have to make a choice, and you know about COVID.”

Rich Rasmussen, chief executive of the Montana Hospital Association, said that HB702, like other legislation, has plenty of unintended consequences that likely won’t be lifted anytime soon. For example, because a healthcare setting can’t discriminate based on vaccines, masking is the only protection places like hospitals can employ.

“What 702 does is ensured that for the foreseeable future, everyone is going to remain masked,” Rasmussen said.

He said that with no masking mandates and other mitigation criteria taken off the table, the peak of the delta variant will happen later with more illness and likely more death.

“If we could just mask in schools, we’d have a significant reduction,” Rasmussen said.

Matt Kelley, the CEO of the Montana Public Health Institute and former Gallatin County Health executive, said that in his conversations with officials, no one is certain what powers they have since the lawmakers substantially changed how departments operate.

However, he said the one thing that hasn’t changed is the legal requirements for health boards to take action during a time of disease. Now, he said, it appears the responsibility to make the decisions will shift from public health boards to local elected officials.

“But health boards have a duty to take action against a public health threat,” Kelley said. “Right now public health officials are feeling caught between 702 and the other bills and their fundamental duties.”

What is difficult is that what was once a matter of public health and science has gotten turned into a matter of politics.

“Lead health officials don’t play in politics,” Kelley said. “This is about stopping the spread of a virus that has killed hundreds of Montanans. That’s what they’re thinking about.”

He said that as the delta variant of COVID-19 spreads, communities will recoil at seeing young people get sick or possibly die.

“What is on public health officials’ minds is: What happens if a child is in the hospital that didn’t quarantine, or God forbid, dies?” Kelley said. “You walk that back and you realize that health officials are wrestling with this. And they won’t just wrestle with it for a year, but for years. There’s very little about politics.

“Thousands and thousands of kids are going back to school without knowing how the delta variant effects them.”

For its part, trying to interpret state law has led to unanticipated outcomes. For example, Lance Melton, of the Montana School Boards Association, has urged members to carefully consider how districts handle now-routine things like quarantining due to COVID-19 as counties request schools’ help enforcing quarantine and isolation orders.

He has reminded school boards that quarantining based on the vaccine status of students could run afoul of HB702. In other words, if a student is contact-traced to a positive COVID case, a district will likely have to quarantine all students that came into contact, not just those who haven’t been vaccinated. Vaccinated students will have to be treated the same way. And, even though those who have been vaccinated normally shouldn’t have to quarantine, in order to comply with the law and not discriminate, either everyone quarantines, or no one does.

“There’s been a fork in the road, that’s based upon whether you have been vaccinated or not,” Melton told the Daily Montanan. However, that changed with HB702, leaving districts to either not comply with quarantining or forcing everyone within contact to quarantine, regardless of vaccination status.

“(Teachers) are going into a room, spending six hours with people not knowing whether every one of them is vaccinated. Nobody else has to do that,” Melton said.

Yellowstone County Chief Deputy Attorney for the civil division Jeana Lervick said that there’s always a conversation about what the new laws mean, but bills passed by the Legislature have added an extra wrinkle with the threat of COVID rising.

“It’s fair to say there’s an ongoing conversation that’s constantly across the state,” Lervick said.

Anthony Johnstone, a professor at the University of Montana’s Alexander Blewett III School of Law, said that trying to harmonize new laws with existing laws and figuring out what they mean is typical. What’s not usual is trying to figure out what the laws mean in terms of a pandemic.

He also agreed that counties are hesitant to be the first to interpret what a new law means.

“No one wants to get ahead of the law,” Johnstone said.

However, HB257 is unique in one respect, “something distinctive,” Johnstone said, because it specifically talks about the relationship of the customer and the business owner and their relationship to the government.

“Often laws are to regulate the business for the benefit of the customer,” Johnstone said. “But this is different.”

The laws have even prompted more basic conversations – for example, in Yellowstone County, who is the agency in charge of approving public health measures. Is it the county? Do all municipalities have to approve mandates?

“So far we haven’t been in a situation where we have to have an answer right away,” Lervick said.

She said it’s difficult for the Legislature to tailor laws to fit all sizes of Montana communities.

“It’s tough to know how something will work in Jordan and how it will look in Billings before it’s passed,” Lervick said.

She also believes the legislature passed the laws in light of dwindling COVID numbers, and likely didn’t anticipate the wave of COVID variants, like the delta.

“I don’t know that they anticipated addressing it as quickly as they have,” Lervick said. “It was the hope, if not the assumption, that we’ll have this all worked out the next time the issue comes around.”

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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.

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