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HELENA — Montana’s ongoing debate over prohibiting vaccination requirements took several twists Wednesday after Gov. Greg Gianforte sent House Bill 702 back to the Legislature with proposed changes of his own. Hours later, the House voted 65-35 to accept those changes.  The Senate approved the amended bill Thursday on a party-line vote.

The amendment submitted by Gianforte appears to address a number of concerns expressed this week about the bill’s potential impacts on health care facilities. Specifically, Gianforte’s changes would allow such facilities to ask employees to volunteer information about their vaccination status, to consider employees who don’t volunteer that information to be unvaccinated, and to implement policies specific to unvaccinated staff, patients and visitors that are designed to protect against the spread of communicable diseases. The amendment would also exempt nursing homes and assisted-living and long-term care facilities that would risk violating federal guidelines or regulations by complying with the provisions of HB 702.

“Ultimately, the decision to receive a vaccine is voluntary, and Montanans should not face the threat of discrimination rooted in whether they decide to receive a vaccine,” Gianforte wrote in a letter accompanying his amendment. “Furthermore, employers must not discriminate or take punitive action against employees who opt out of immunizations, but instead should work to provide well established, reasonable accommodations that protect the health and safety of all involved.”

Members of the House debated the amendment Wednesday evening, with lawmakers still deeply divided. Rep. Ed Buttrey, R-Great Falls, said he would continue to support HB 702, albeit reluctantly, indicating that he still has several concerns related to the health and safety of vulnerable patients in Montana’s health care facilities. Buttrey added that the amendment’s provision about protocols for unvaccinated hospital employees reads like “a trial lawyer’s dream” and suggested that the bill will likely result in litigation.

“While I feel I have valid concerns, we’re being assured by those crafting the governor’s amendment that this change will serve to protect our hospitals, workers, patients and public,” Buttrey said.

HB 702’s sponsor, Rep. Jennifer Carlson, R-Manhattan, told colleagues that Gianforte’s changes successfully addressed concerns while adhering to the spirit of the bill.

“HB 702 goes way beyond COVID-19 and needs to be fixed by the Legislature or hospitals will be forced to operate in a pandemic-response posture instead. It is our recommendation that HB 702 be limited to COVID-19 only and not create a compliance nightmare with respect to vaccine verifications and federal guidance for health care facilities.” 

Joseph Schimenti, president, Yellowstone Insurance Exchange

“There has been some angst about this bill and we wish to alleviate that,” Carlson said. “I appreciate the governor’s ongoing support for this legislation and his efforts to ensure that this amendment does not fundamentally alter or change the intent of the bill but rather addresses concerns of the stakeholders.” 

Lawmakers did amend HB 702 earlier this month to maintain existing vaccination requirements and exemptions for K-12 public schools and childcare settings.

Gianforte’s amendment arose partly from a discussion earlier this week between his office, several lawmakers, and Cherie Taylor, CEO of Northern Rockies Medical Center in Cut Bank. That conversation, which was mentioned Monday by Rep. Llew Jones, R-Conrad, during the House’s deliberations on the bill, resulted in the governor’s office assuring lawmakers the measure would have no adverse impacts on hospitals and other health care facilities. That assurance proved critical in securing yes votes from several House lawmakers, including Jones.

Montana Free Press spoke with Taylor by phone Wednesday morning about her conversation with Carlson, Lt. Gov. Kristen Juras and others. Taylor characterized the officials as “very receptive” to her concerns about lifting staff vaccination requirements, and said they “assured me that the bill would not impact our hospital’s current practices surrounding vaccination requirements and verification.”

“What was relayed to me was that this bill was not hampering a facility’s ability to verify immunizations and what [staff] have [been immunized],” Taylor said. “What the bill was going after is that individuals could not be fired for such status and that we would still have the ability to, if they needed to be masked based on their vaccination status, that would be completely reasonable.”

Taylor added that she remained concerned even after HB 702’s passage by the Legislature Monday that the bill would conflict with federal regulations set down by various entities, including the Centers for Disease Control and Prevention and the Centers for Medicare and Medicaid Services (CMS). Rich Rasmussen, president and CEO of the Montana Hospital Association, told MTFP that CMS had proposed a new rule on Tuesday to require all hospitals nationwide to report staff vaccination rates. Absent Gianforte’s amendment, HB 702 could have hamstrung Montana hospitals’ ability to comply with such rules.

Taylor voiced additional concerns about the liability implications for health care facilities under HB 702. The pandemic has resulted in at least two lawsuits against nursing homes alleging wrongful deaths of elderly residents. With HB 702 prohibiting vaccination requirements not just against COVID-19 but a host of communicable diseases, including measles, chicken pox and influenza, Taylor questioned whether such facilities would be legally vulnerable in situations where a patient contracts a disease. Rasmussen echoed that concern.

“We know that in Montana we struggle with whooping cough,” Rasmussen said. “That is one of the vaccines that we require our employees to have. That is a highly contagious disease. It is one which, for certain populations, can be very debilitating. But we don’t have our employees in our facilities spreading that. And now you have a bill that would essentially tie our hands on requiring those vaccinations.”

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The issue hasn’t been raised only by hospital leaders. Rasmussen received a letter this week from Joseph Schimenti, president of Yellowstone Insurance Exchange, which provides liability coverage and risk management services to critical access hospitals in Montana, Wyoming and Idaho. In it, Schimenti voiced the group’s opposition to the pre-Gianforte-amended version of HB 702, stating that it “places our member hospital employees, patients and visitors at risk” and will “create a difficult litigation environment for all parties involved.”

“HB 702 goes way beyond COVID-19 and needs to be fixed by the Legislature or hospitals will be forced to operate in a pandemic-response posture instead,” Schimenti said. “It is our recommendation that HB 702 be limited to COVID-19 only and not create a compliance nightmare with respect to vaccine verifications and federal guidance for health care facilities.” 

Also on Rasmussen’s list of concerns is how HB 702 will impact recruitment in Montana’s health care industry. The state has already been grappling with workforce shortages for years. Rasmussen said uncertainty over the vaccination status of colleagues could be enough to make potential hires think twice about accepting positions in Montana. He added that the workforce considerations don’t end there.

“The other challenge to this, which would be unfortunate, is that if hospitals had to rely on vaccination verification, they may find themselves utilizing recruiting agencies outside the state of Montana that can verify vaccination status,” Rasmussen said. “So you have a situation where instead of hiring the young nurse graduating out of MSU, we would be hiring the young nurse that’s graduating out of the University of Colorado. Why? Because we can verify their vaccination status.”

In light of Gianforte’s amendment, Rasmussen said, MHA’s legal counsel is continuing to analyze how HB 702 will impact Montana hospitals and how hospitals can balance the bill’s provisions with federal regulations.

“That’s what we’ll be sharing back to our lawmakers and to the executive in the state,” he said, “that here are the legal minds’ feelings about how we can appropriately, effectively and legally work within the guidelines of 702.”

This story was updated April 29, 2021, to reflect HB 702’s passage by the state Senate.

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Staff reporter Alex Sakariassen covers the education beat and the state Legislature for Montana Free Press. Alex spent the past decade writing long-form narrative stories that spotlight the people, the politics, and the wilds of Montana. A North Dakota native, he splits his free time between Missoula’s ski slopes and the quiet trout water of the Rocky Mountain Front. Contact Alex by email at asakariassen@montanafreepress.org.