Credit: Eliza Wiley / MTFP

The Montana Nurses Association expressed serious concern Wednesday over the legality and scientific accuracy of an Aug. 31 emergency rule issued by the Montana Department of Public Health and Human Services. The rule told public schools they “should consider” parental concerns when imposing face mask mandates in response to the COVID-19 pandemic, and stated that scientific literature is “not conclusive” on the effectiveness of masks in reducing the spread of viral infections.

MNA’s reaction Wednesday came in the form of a memo addressed to “Montana citizens” claiming the DPHHS rule “promotes junk science” and fails to meet any of the requirements of an emergency rule as outlined in state law. CEO Vicky Byrd told Montana Free Press that MNA’s legal counsel conducted an analysis of the rule following its release. The analysis, which was outlined in the memo, concluded that DPHHS failed to make a compelling case that face mask policies in schools constitute “imminent peril,” as state law requires of emergency rulemaking. MNA also wrote that since the agency did not include any “shall” or “must” requirements for local agencies adopting such policies, the rule contained no actual regulatory content. The memo further stated, “DPHHS could just as easily have issued a press release stating the same suggestions, without abusing the rulemaking process.”

Despite its assertion that the rule “plainly violates Montana law,” MNA concluded that a legal challenge “would be futile because the rule does nothing.” A DPHHS spokesperson did not immediately respond to a request for comment for this story. In announcing the rule Aug. 31, DPHHS Director Adam Meier issued the following statement:

“It’s not OK to be told that masks are ineffective or they don’t work. I’m pretty sure if you went in to get your knee operated on, you would want everybody in the [operating room] to have their mask on.”

Vicky Byrd, CEO of the Montana Nurses Association

“A number of scientific studies indicate that universal mask use among children can adversely affect their health and development, particularly among children with learning or developmental disabilities. DPHHS respects the authority of parents to make health-related decisions in the best interest of their children, including whether wearing a mask in school is appropriate. DPHHS would encourage schools to take into account all of these factors and implement any mitigation strategies in the least restrictive means as possible to maximize learning outcomes for Montana children.”

The MNA memo also said DPHHS and Gov. Greg Gianforte misrepresented the science regarding face coverings and presented a detailed rebuttal of the sources cited in the emergency rule. According to the memo, those sources included a study that has not yet been peer reviewed, a study endorsed by the Centers for Disease Control that actually supports the efficacy of mask wearing, and an opinion article from New York magazine penned by writer, lecturer and musician David Zweig. Byrd told MTFP that members of her organization rely on evidence-based and peer-reviewed scientific data to deliver health care, and that the state’s reliance on non-peer-reviewed sources in an emergency rule is “extremely frustrating.” 

“It’s not OK to be told that masks are ineffective or they don’t work,” Byrd said in an interview. “I’m pretty sure if you went in to get your knee operated on, you would want everybody in the [operating room] to have their mask on.”

While the memo is the most detailed critique of the emergency rule so far, other groups in the state have issued skeptical responses over the past week. School officials in Missoula, Great Falls and Bozeman all responded with statements affirming that their masking policies are already in line with the rule’s recommendations. The Montana School Boards Association and Montana Federation of Public Employees similarly stated that the rule would have little impact on their members, as parental concerns are already a consideration in reviewing and adopting district-level policies. MNA closed its memo with an appeal for Montanans to get vaccinated if they can, and to wear masks in public places regardless of vaccination status.

“We are in a global pandemic,” Byrd said. “This is a public health crisis, and because it’s getting politicized and emotionalized, nobody wants to hear the facts and the truth as we know it.”

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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.