Healthcare officials say they’ll follow CMS rules, not HB702, in order to keep operating

By: - November 17, 2021 3:08 pm

Gov. Greg Gianforte announces the opening of the first state-run monoclonal antibody treatment clinic during a press conference on Thursday, Oct. 21, at St. James Healthcare in Butte.

On Tuesday, Gov. Greg Gianforte “reaffirmed” Montana’s vaccine mandate ban, a state law that was passed by the Legislature earlier this year that disallowed many employers from requiring vaccines as a condition of employment.

But while a federal court halted a vaccine or testing requirement developed by Occupational Safety and Health Administration from going into effect, many healthcare organizations throughout the state say they’re continuing to require employees be vaccinated by Dec. 5, as directed by the federal Centers for Medicaid and Medicare Services.

Montana’s controversial House Bill 702, which remains among the most restrictive in the nation, bans most employers from requiring not just a COVID-19 vaccination, but any vaccination. The law carved out several exemptions, including for schools, and left the decision to local school boards. The state law also exempted certain nursing home facilities.

But CMS issued a rule that said any facility receiving Medicare or Medicaid payments must require all employees to have at least their first dose of a COVID vaccine by Dec. 5 or risk losing reimbursement.

That directive is different than the OSHA directive or plans by President Joe Biden, which would require vaccinations or regular testing for larger employers. So far, at least one federal court has temporarily halted the OSHA directive through a temporary stay.

Montana Attorney General Austin Knudsen has filed or joined at least three different lawsuits challenging the Biden administration directives.

Meanwhile, most Montana hospital and healthcare organizations say they’re going to keep on following the CMS rules unless a court directs otherwise. Montana Hospital Association Chief Executive Officer Rich Rasmussen said it’s a matter of economic survival.

“There’s not a hospital in Montana that could survive if it didn’t follow those directives,” Rasmussen said.

He said overall, CMS reimbursements constitute approximately 67 percent of payments to his members. That translates to putting $2.1 billion in healthcare dollars in Montana at risk.

On Tuesday, the three largest healthcare organizations in the state’s largest county announced that they will be following the CMS rules, while Gianforte delivered a different message.

“We remain committed to comply with all requirements and regulations surrounding the safe and high-quality delivery of healthcare in the communities we serve,” said a joint press release from SCL-St.Vincent, RiverStone Health and Billings Clinic. “The interim final rule allows for exemption from the vaccination requirements and each of our organizations are in the process of planning for the collection and evaluation of those reports.”

The press release pointed out that the OSHA ruling on Nov. 5 that Gianforte referenced is different than the CMS rule.

“The CMS final interim rule specifically preempts the applicability of any state or local law to the contrary and therefore, this rule supersedes Montana House Bill 702,” the organizations said. “We recognize that several states have challenged the CMS rule but that because the first compliance deadline is three weeks away, our organizations are proceeding with plans and processes to comply with the CMS rule.”

Questions and calls to Gianforte’s office as well as queries to Knudsen’s office were not returned as of mid-afternoon Wednesday.

Rasmussen said that all healthcare organizations across the state and his members are moving ahead with plans to meet the vaccination requirement, largely for financial reasons.

“You know, ideally, we would like to have the ability to self-determine what is the best policy for our team members locally,” Rasmussen said.

Megan Condra, marketing director at Community Medical Center in Missoula, said that staff are asking daily about the vaccination requirement, with some confused about the different lawsuits and directives.

“It seems to be changing every day, and we get questions everyday,” she said. “We’re definitely aware of the CMS rules and complying with them until we’re provided with updated guidance.”

Rasmussen said the Montana hospitals are also closely monitoring the rules and the challenges winding their way through court and communicating to members.

“The vast majority of our employees throughout the state are vaccinated,” Rasmussen said, pointing out that there are exceptions even in the CMS rules.

Bozeman Health marketing director Lauren Brendel said that their team has been working to meet the legal requirements of CMS.

“Until there is further direction from the courts, the CMS rule remains in effect,” Brendel said. “Our legal, compliance, and human resources teams have been actively working on our approach to meet the CMS regulations and best support our employees, patients and community.”

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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.