House Bill 702 trial wraps up, pits public health against state’s police power

By: - October 26, 2022 7:50 pm

The Russell Smith Federal Courthouse. (Tommy Martino, for the Daily Montanan)

House Bill 702 was democracy in action — the will of the people exercised through their representatives to prevent workplace discrimination based on vaccination status.

So said Deputy Solicitor General Brent Mead on behalf of defendants, which included the Gianforte administration and Attorney General Austin Knudsen, in a trial that wrapped up Wednesday. And Mead said those who don’t like the “hotly contested” ban have an opportunity to change it.

“It’s two months from now in Helena when the legislature reconvenes,” Mead said.

Some states may choose to permissibly restrict people’s rights, he said, but when it comes to discrimination, elected officials in Montana made a different choice.

“Montanans have enjoyed the protections of HB702 for more than a year at this point,” Mead said.

But on behalf of plaintiffs, lawyer Justin Cole argued the “irrational and arbitrary” law throws protections out the window, and for many different parties.

He said it does so for immunocompromised individuals who have no choice but to be exposed to the risk of infection when they go to medical appointments; for nurses in the workplace treating sick patients; and for employers who can’t protect patients or staff because they don’t know the actual vaccination status of their workers.

“This law unquestionably harms public health,” Cole said.

He said it contradicts multiple federal laws and forces institutions to choose to break state law or federal law.

Those are some of the arguments lawyers made in closing arguments in the trial over HB702 in U.S. District Court in Missoula.

In September 2021, the Montana Medical Association and other medical groups and individuals sued the State of Montana alleging the 2021 law is unconstitutional. The state has an interest in protecting public health, but the plaintiffs argue the law makes people in health care settings less safe.

The Montana Nurses Association also joined the lawsuit.

But defendants Knudsen and Commissioner of Labor and Industry Laurie Esau argued the state holds the police power to protect citizens from discrimination and also has an interest in protecting their medical privacy.

The trial lasted less than two-and-a-half days, and the federal judge Donald Molloy heard testimony from medical providers and patients — along with the head of the Montana Human Rights Bureau. The bureau chief handles discrimination cases, and on the stand, she shared the “absurd results” the law creates.

In the Russell Smith Federal Courthouse, the lawyers and witnesses touched on the politics of COVID-19, the nature of different health care settings when it comes to infection risk, and the effect of the legislation — actual and anticipated — on sick patients in seeking medical care.

Mead, for instance, said some patients who feared getting COVID-19 when they went to a medical appointment nonetheless didn’t ask to be treated by only a vaccinated provider. Plus, he noted a couple of patients admitted they worried about getting sick from other patients, not from caregivers.

Cole, though, stressed the implications were broader than COVID-19, and the key for public health and safety is transparency, which the law curtails. For example, in a bad flu season, the Western Montana Clinic wants to know the flu vaccination status of its workers to take necessary precautions.

But Meghan Morris, chief executive of Western Montana Clinic, said they stopped offering a declination form after HB702 because they didn’t think they could inquire anymore.

Lawyers also submitted reports from witnesses who didn’t take the stand and weren’t questioned in court. At the end of closing arguments, Molloy said given the amount of material in the case, he won’t be ruling overnight.

Does the type of health care setting matter?

One of the points the lawyers debated was whether different health care settings matter, and they quizzed medical providers on the topic.

House Bill 702 applies to offices of private physicians and hospitals, but it exempts licensed nursing homes, long-term care facilities and assisted living facilities.

The plaintiffs argued caregivers and patients need to be protected in all settings – and both populations move fluidly. Also, different types of facilities operate in some cases under the same roof. So plaintiffs believe the law and the distinctions it creates are irrational.

The State of Montana, on the other hand, noted different types of facilities pose different risks inherent in their patient demographics — and evident in their different and specific regulations. So the state believes the law and its exemptions offer a defensible approach.

In testimony Tuesday, Montana Nurses Association chief executive Vicky Byrd said roughly 18,000 nurses work in the state, and some of them are immunocompromised.

In questioning by lawyer Raph Graybill, Byrd testified that nurses spend time with sick patients in all settings, and they are at similar risk of vaccine-preventable diseases everywhere. Graybill asked if there’s a difference in risk based on the type of facility.

“There really is no difference,” Byrd said.

Under cross-examination by Mead, however, Byrd acknowledged that patients being treated in different settings have unique characteristics that play a role in their risk to infectious diseases.

For example, Mead asked if the population of a nursing home is generally going to be at higher risk of infection than the population of a public school, and Byrd agreed.

In the U.S., nursing home residents make up less than 1 percent of the population, but they account for 30 percent of all COVID-19 deaths, Mead said. In those settings, he said, they have more of a chance of getting sick.

“That’s why they were exempted,” he said.

Montana Human Rights Bureau investigates complaints

Doctors, nurses and patients testified, but so did Montana Human Rights Bureau Chief Marieke Beck. The Human Rights Bureau investigates allegations of discrimination in the workplace.

In closing statements, Cole said the arbitrary and irrational nature of the law was demonstrated in the way it’s being enforced. He said the Human Rights Bureau has done its best to enforce the illogical law, but investigations show it to be problematic.

For example, a retreat for cancer survivors in the middle of 2021 required those attending in person to be vaccinated, and it offered remote participation to those not vaccinated, according to testimony from Beck under questioning from lawyer Kathryn Mahe.

In response to a complaint, however, a bureau investigator found that limiting in-person attendance to only those vaccinated was a violation of the Human Rights Act despite the “unprecedented circumstances” created by the pandemic, according to testimony.

Additionally, the Human Rights Bureau found the prison, because it has an infirmary, was entitled to an exemption from HB702, but it couldn’t find a pediatrician’s office was entitled to an exception, Cole noted.

Patients expect safety

Healthcare organizations also argued that it only makes sense for employers to know if their caregivers are vaccinated to help them avoid hazards — and that patients want their caregivers to be vaccinated, and in some cases, assume it’s just part of the job.

In testimony via video feed, Diana Jo Page, a breast cancer survivor, said she had asked the receptionist in her oncology office whether workers were vaccinated. She was undergoing chemotherapy treatments during the pandemic, and she said the receptionist told her the office was not allowed to disclose the information.

Page said she and her husband, Wallace, who is currently receiving treatment for cancer, are at increased risk of infection, and they have taken their own precautions.

They are close with family, but they have lived in isolation to decrease their exposure during COVID-19. The Pages, also plaintiffs, expect their health care providers to keep them safe too, she said.

“I just assume that they are vaccinated,” Diana Jo Page said under questioning by Cole. “They take an oath that says to do no harm, and I just can’t imagine that a medical facility who is treating people who are vulnerable would not take every precaution that they can to keep their patients safe.”

Under cross-examination by Mead, however, she acknowledged that the reason she once avoided a trip to the emergency room despite an asthma attack was because she worried about being infected by other patients.

In his closing argument, Mead noted Wallace Page testified that he had received care in a safe environment, and both he and Diana Jo Page acknowledged they had not ever requested to be treated only by vaccinated staff.

Caregivers want transparency, but regulations have stayed the same

Plaintiffs in the case include Five Valleys Urology, Providence Health and Services Montana, and Western Montana Clinic, in addition to the Montana Medical Association, Montana Nurses Association, and other individuals.

Doctors and the heads of Five Valleys and the Western Montana Clinic testified that they need to know if workers are vaccinated to make the best decisions for their workplaces.

Does a staff member need to work in isolation? Who should go into a room with a patient who has measles? Who shouldn’t? Who should care for sick babies in intensive care?

Health care providers are already short staffed, and they want to keep workers safe, said Byrd, whose organization represents roughly 2,700 nurses.

Through cross examination, however, Mead noted much of the operations at different facilities have remained the same before and after HB702. Workplaces still collect information from workers and keep it on file, he said, and vaccination policies have stayed the same too, tailored to the different facilities.

In one workplace in particular, he noted the nurses union negotiated a contract that protected its members from retaliation based on vaccination status.

“To the defendants, that sounds like the point of HB702,” Mead said.

Closing arguments

A preliminary injunction is in place for the part of the law that relates to COVID-19, and in closing arguments, Mead argued that if the judge orders a permanent injunction, it should be narrowly crafted.

Mead agreed people should be able to pursue employment in a safe setting, but he said the state’s right to exercise its police power is greater, and finding otherwise would be neutering the power of state government.

Plus, he said the state’s power to govern how people function in a society is expansive, and just because there’s a conflict with federal law doesn’t necessarily mean the state loses.

In this case, he said the right equation needs to balance risk to the patient, financial regulatory burdens, and protecting the autonomy of health care workers. He said doing so is the job of the legislature, and HB702 is the product.

On behalf of the plaintiffs, however, Cole argued the law contradicts public health by putting caregivers and patients at higher risk, it conflicts with the Americans with Disabilities Act and OSHA, the Occupational Safety and Health Administration, and it illegally and irrationally treats different groups of people differently.

He also said medical privacy is already federally protected through HIPAA, the Health Insurance Portability and Accountability Act, and knowledge of vaccination status is different, an employment record.

Generally, medical experts presented “uncontroverted evidence” that shows the ability to treat staff according to their immunization status is an essential tool to reduce risk of vaccine-preventable disease, he said. He said those diseases are recognized hazards in health care settings — and HB702 makes the workplace less safe.

The U.S. Supreme Court has found that at times, individual liberty must yield to public health and safety, but he said HB702 elevates individual choice over the public good and well-being.

“This law does the opposite,” Cole said.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”

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