Montana Public Radio

How Montana's New Laws Limit Public Health Powers

May 24, 2021

Montana’s Republican majority this session took aim at public health officials’ authority, saying they overstepped in their COVID-19 response with mask mandates and business closures.

Freddy Monares spoke with Montana Public Radio’s Aaron Bolton to break down the impacts of the bills that passed and those that didn’t.

Freddy Monares: Aaron, a flurry of legislation took aim at public health at all levels. What were some of the bills that passed?

Aaron Bolton: One new law gave local elected officials like city and county commissioners final say over regulations health boards pass. Another prohibits regulations that would force businesses to deny customers; so think mask mandates and capacity limits. 

Freddy Monares: Vaccination requirements came up, too?

Aaron Bolton: Yeah. Most employers or government agencies are now prohibited from requiring COVID-19 vaccines. And who can provide vaccination exemptions for children in school has been expanded, though COVID-19 vaccines aren’t currently required by state law in public schools. 

Gov. Gianforte did sign a bill into law limiting the length of a state of emergency declared by the governor to 45 days. Extending a state of emergency beyond that would require approval from state lawmakers. 

Freddy Monares: Right. While much of the pandemic-related legislation that Republican lawmakers passed was signed by Gov. Gianforte, he did use his veto powers.

Aaron Bolton: Yeah, on two bills. One would have allowed citizen initiatives to amend or repeal health board regulations. And another would have set up a review of state and local regulations during the pandemic to evaluate their impact on Montanans. 

He also amended a bill on vaccine requirements over concern that pandemic restrictions at hospitals would become permanent if they couldn’t ask if their employees were vaccinated against COVID-19. 

Freddy Monares: Heading into the session, public health officials and their advocates were concerned about what could happen, but how do they think the local public health system fared now that we know what laws have changed?

Aaron Bolton: I talked to Drenda Niemann, who is the Lewis and Clark County health officer and also chairs the Association of Montana Public Health Officials’ board. Ultimately, she says local public health officials’ authority being put into the hands of elected officials is the largest impact of the session.

“There’s a really good reason why boards of health are not elected or health officers are not elected, and why public health is charged with and has the responsibility to and has the expertise to protect the public. That’s because the decisions that need to be made around public health and protecting the public cannot be politicized.”

Aaron: Niemann adds the law giving elected officials authority over health boards makes it unclear who has the authority in more populated counties — like Lewis and Clark, Missoula and Flathead counties — that have multi-jurisdictional city-county health departments and boards. Or rural public health districts encompassing multiple counties, like the Central Montana Health District. 

She says hashing out which elected officials, including city council members and county commissioners, have the authority to approve health board actions could take some time. And she says health boards in these places can’t pass or amend any regulations right now. For example, Niemann says Lewis and Clark County Board of Health couldn’t amend regulations on how contaminated soil from a local superfund site is stored so it doesn’t impact residents’ public health. 

“So if we have a situation in our county where there’s a public health threat, and we need a new regulation that’s not currently on the books, not currently outlined in state law or federal law, and we need to put something in place at the local level, we wouldn’t be able to do it today.”

Freddy Monares: Right. So can a county commissioner choose not to use that new authority and continue with health boards and officers setting those regulations?

Aaron Bolton: Niemann says there’s some people in the state who do think that is possible, but I asked Republican Rep. David Bedey of Hamilton, who sponsored the bill, about the possibility of what would happen if elected officials decided to keep that authority with public health boards.

“I would be disappointed should any multi-jurisdictional entity choose that particular route, because it is clearly outside the intent of this legislation.”

Aaron Bolton: He also said including city council members or county commissioners as voting members on health boards, as some multi-jurisdictional boards already do, also wouldn’t be in line with the oversight outlined in the law. 

Freddy Monares: With limitations on what kind of regulations local health boards can pass and who has final say over regulations, I’m wondering if this is going to impact public health departments’ day-to-day work.

Aaron Bolton: Niemann says this law and others don’t really impact day-to-day public health authority that’s already outlined in local regulations or state law. For example, the food code is outlined in state law, so if there’s a food-borne outbreak at a restaurant — like E. coli — public health officials can shut it down or take other measures. Instead, Niemann says this law will take away health officials’ ability to quickly and nimbly respond to new public health threats, which could be a whooping cough outbreak.

She says public health departments across the state will be documenting impacts as they arise and will provide that data to lawmakers so they can understand how these laws have played out in the real world.

Freddy Monares: Speaking of next session. That’s two years away and the COVID-19 pandemic, which sparked much of this legislation, could be in the rearview mirror by then. Do Niemann and others think they’ll have to contend with more legislation like this in the future?

Aaron Bolton: Niemann and other health officials say that’s hard to say, but I spoke with Adriane Casalotti and the National Association of City and County Health Officials.

She says legislation like what passed in Montana is bubbling up across the country. Many of those bills that gained traction this year may have been watered down, but she doesn’t think conservative lawmakers’ nationwide push to limit public health authority will end this year. 

“Even if they only got one bite at the apple, or a couple bites at the apple. They’re going to go for the whole thing eventually.”

Aaron Bolton: She thinks lawmakers could revive some of the more extreme pieces of legislation or bills that didn’t pass, like bills that would give power to change or repeal public health measures directly to the electorate. 

Freddy Monares: Aaron, thanks for your reporting.

Aaron Bolton:  No problem. Happy to be here.