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Montana hospitals face looming choice between state law, federal vaccine requirements

COVID-19 floor at Benefis Health System

Nurses Elizabeth Nugent and Mason Murphy work on the COVID-19 floor during the night shift at Benefis Health System.

Hospitals and many other health care facilities in Montana will soon face an uncomfortable choice — get employees immunized against COVID, in violation of a new state law forbidding workplace vaccine mandates, or forfeit federal dollars.

The Biden administration last month announced the Centers for Medicare and Medicaid will begin requiring that staff at CMS-certified facilities throughout the country mandate COVID vaccinations for their staff in order to receive reimbursements through the Medicare and Medicaid programs.

For many health care facilities, that’s a massive piece of their finances. Benefis Health, which has about 3,400 employees within its two hospital campuses in Great Falls, a senior services facility and a critical access hospital in Choteau, gets 76% of its payments through federal sources, according to Kaci Husted, the organization’s vice president of business development and communications. The “vast majority” of that, she said, is through Medicare and Medicaid.

“That’s crucial to our business,” Husted said.

But that requirement tees up a conflict unique to Montana. Earlier this year, Republican Gov. Greg Gianforte signed into law House Bill 702, which seeks to prevent workplaces from discriminating against staff, customers and others who use their facilities on the basis of their vaccination status. In practice, it forbids private businesses and other employers from requiring staff to get any type of vaccine — though it includes carve-outs specific to schools and nursing homes. Such requirements now fall under the state's legal definition of discriminatory practices.

Supporters of House Bill 702,

Supporters of House Bill 702, to slash immunization requirements, gather in the State Capitol Rotunda on Monday, April 26, 2021.

Husted said Benefis plans to move ahead with a companywide vaccine mandate for staff once the CMS rule is rolled out. The mandate was announced to employees Sept. 10, the day after the CMS announcement.

“You hear some employees who are thrilled about this, and you hear some employees who aren’t so thrilled about it,” Husted said. “… We’ve heard it both ways, but at the end of the day, we really go back to our guiding principle of what is the best for our patients and the community.”

COVID cases have been surging for more than two months in Montana, even as most of the rest of the country has enjoyed a lull after a severe surge over the summer. The state has consistently had the highest or second-highest number of daily cases per capita in the country, and overwhelmed hospitals throughout Montana have been supplemented with National Guard members as demand for their intensive-care units regularly spike well above capacity.

National Guard at Benefis Health System

Master Sgt. Quinn Nelson, a Great Falls native who graduated from C.M. Russell High School, helps with supply management at Benefis Health System. The health system received about 150 packages of supplies per day before the pandemic, but the supply strains of the times have pushed that to about 250-275 boxes a day. Nelson has improved the efficiency of the department in getting personal protective equipment and other gear where it needs to be for patients and staff. 

Medical professionals and agencies — as well as the governor — have repeatedly said getting more Montanans vaccinated is critical to stopping the onslaught of the virus’s highly contagious Delta variant. More than 2,200 Montanans have died from COVID to date, and the state has now recorded more coronavirus-caused deaths in 2021 than during the first year of the pandemic.

But many Montanans remain skeptical of getting vaccinated, despite an ever-growing body of medical evidence that the three approved vaccines are safe and effective. One, created by Pfizer, has received full approval by the federal Food and Drug Administration, while the other two have received emergency use authorizations. The state ranks in the bottom third nationwide, with 50% of the population fully vaccinated, versus 57% in the U.S.

Rep. Jennifer Carlson, the Manhattan Republican who sponsored the vaccine-discrimination bill, did not respond to phone calls seeking comment for this story. Arguing for her legislation on the floor of the state House earlier this year, Carlson had dismissed concerns raised by Democrats and some Republicans that the bill would hamstring the ability of hospitals to keep people safe, and would put them in jeopardy of losing federal funding.

Rep. Jennifer Carlson, R-Manhattan

Rep. Jennifer Carlson, R-Manhattan

"The prohibition was against denying a person employment, or firing a person," she said in an April 28 speech. "It was not a prohibition against health and safety standards, or reasonable accommodations, or infection control, or treating patients, or being careful, or making sure sick people aren't injured at health care facilities. It wasn't about that. It was about employees."

The bill ultimately passed with near-unanimous support from Republican lawmakers, who hold majorities in both chambers. Democrats almost uniformly opposed the bill.

Two lawsuits are currently seeking to overturn HB 702 in state courts, arguing that it violates the state Constitution's guarantees to equal protection and a "clean and healthful environment." Montana Attorney General Austin Knudsen has sought to dismiss one of the lawsuits, arguing the plaintiffs lack standing and fail to show how they've been injured by the new law.

The CMS vaccine requirement for health care facilities builds on an earlier announcement by the Biden administration that nursing home staff would have to be vaccinated to receive Medicare and Medicaid reimbursements. CMS initially planned to put the emergency regulation into effect in September, but it has yet to be published.

Such a mandate could potentially prevent tragedies like the one that unfolded this August in a nursing home in Libby, where at least 10 residents died from COVID-19 amid an outbreak traced back to a staff member who contracted the virus, according to the Daily Inter Lake. Cascadia Healthcare, the nursing home’s parent company, did not say whether the employee was vaccinated, but confirmed only half of its staff had gotten the shot.

The Montana Health Care Association represents the state’s nursing homes and other long-term care facilities. Its executive director, Rose Hughes, called the proposal a “double-edged sword” and said many of her group’s members are concerned that requiring vaccines will drive even more staff to leave an industry long plagued by worker shortages.

“We have the worst staffing shortage that I’ve seen in my 40 years dealing with these facilities,” Hughes said in an interview last week.

COVID-19 floor at Benefis Health System

Sheldon Fladland, RN, returns from taking a patient into the Benefis Health System Emergency Department after the patient's oxygen levels precipitously dropped. A new graduate, pandemic-era nursing is all he’s known.

And given the state’s persistently tight labor market, she noted there are a lot of other places that support staff — who typically make around $15 an hour — can easily find better-paying work that doesn’t require any shots.

“They’re especially worried about nursing assistants, because at that level of wages, they would not have trouble finding another job,” she said, adding, “Without exception, these facilities list the workforce shortage as their top problem.”

Hughes said those salaries have, on average, risen across the state in that last two years. But nursing homes often operate on tight budgets, and she said they generally don't have much room to boost entry-level salaries further.

"At the same time, they can't admit people because there was an outbreak," Hughes added. "In terms of their general well-being, the facility and how they operate and what they're trying to do, they're no better off than they were a year ago. If anything they may be worse off."

While Montana’s new vaccine law allows mandates specifically for nursing homes and other long-term care facilities, if it becomes a requirement to receive CMS funding, Hughes noted that a separate federal requirement is in the works that could complicate things. The Biden administration is also finalizing another requirement — to be enacted by the Occupational Safety and Health Administration — that would force companies with more than 100 employees to mandate either vaccinations or coronavirus testing for all staff.

Knudsen has said he plans to challenge the OSHA rule in court once it is published.

Since the requirement comes from OSHA, and not CMS, it wouldn’t be covered under the HB 702 carve-out for nursing homes.

But Montana’s new law might leave enough wiggle room to not conflict with the OSHA rule — at least when it comes to health care facilities. The legislation states that those organizations may “implement reasonable accommodation measures” to protect the health of staff and others from unvaccinated employees, though it doesn’t define those measures. Biden has stated that the final OSHA rule will include a testing option in lieu of vaccination.

While Benefis in Great Falls plans to move forward with a companywide vaccine mandate once the federal government starts requiring it, other large hospitals in the state are still weighing their options.

"As soon as new vaccine mandate regulations become available, Billings Clinic will implement a plan that complies with applicable laws," Zach Benoit, a spokesman for the state's largest hospital, wrote in an emailed statement Thursday. But, he added, "Forfeiting CMS reimbursement would have an unsustainable financial effect."

Nurses at Billings Clinic

Nurses at Billings Clinic prepare to turn a patient from his stomach to his back in the hospital's intensive care unit on Sept. 17. 

CMS did not respond to a list of questions emailed on Wednesday, including on the expected timing of the vaccine regulations and whether mandates would allow for routine testing instead of vaccination, similar to the OSHA requirement.

Bozeman Health spokeswoman Lauren Brendel also declined to comment on that hospital's plans for navigating potential conflicts in the state and federal requirements before the federal rules are published.

But hospital officials there said they’ve struggled with staff turnover since the pandemic began, a situation common to many medical facilities across the country. Montana Hospital Association CEO Rich Rasmussen said that’s also true across the state.

“Certainly there is broad concern about ensuring our facilities do not lose any staff members because of the vaccine mandate,” Rasmussen said. He added, "It may not be clinical staff, it may be support staff.”

Bozeman Health has been operating at or near capacity since COVID cases began spiking in Montana last year, Chief Nursing Officer Diane Patterson said Thursday. During that period, annual staff turnover has hovered just under the national average of 30%.

Still, Bozeman Health has been more successful than many other hospitals when if comes to encouraging employees to get immunized on their own. The hospital has an 80% vaccination rate among its staff, Brendel said, and a 90% rate among medical staff.

“A lot of team members talking to each other in a respectful way, raising awareness, dispelling any myths, pulling in research and understanding their ‘why’ for why they chose to be vaccinated has really been helpful in getting people to navigate those decisions,” Patterson added.

The emotional toll of treating patients in the midst of a pandemic with no end in sight — Montana has for weeks stood out as one of the country's top COVID hotspots — has also potentially played a role.

“By far, the majority of the team members believe in the COVID vaccine and have chosen to get the COVID vaccine,” Patterson said. “I think that it’s very hard for the team to see patients coming in and dying, that have made decisions not to get the vaccine, and that’s probably one of the biggest pieces of compassion fatigue that we see.”

Montana State News Bureau Chief Holly Michels contributed to this story.

Montana State News Bureau

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