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Montana health officials struggle with changes to state law

June 20, 2021 GMT

HELENA, Mont. (AP) — Legislation aiming to protect businesses from COVID-19 restrictions imposed by local authorities was signed into law by Gov. Greg Gianforte more than a month ago, but across the state, elected officials, public health officers and attorneys are left with wildly different interpretations of what the new law actually does.

In Bozeman, officials say they’ll be taking a more hands-off approach to everything from food safety regulations to sanitation requirements at local businesses, as they come to grips with a new law they believe has gutted their ability to enforce even the most basic health rules, the Montana State News Bureau reported.

“It isn’t just emergency rules that we can’t enforce. It would be any rule that might rely on a business owner for enforcement or interfere or get between a service provider or business and their customers,” Gallatin County Commissioner Scott MacFarlane said. “It seems to negate a lot of the health code. We understand we can still have the code and say, ‘These are the things that we expect,’ but it really looks like all those code items become recommendations.”

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House Bill 257 was part of a stack of bills brought by Republicans during the recent session to address what they saw as overreach by public health officials during the COVID-19 pandemic. The relatively complex measure mainly sought to shield businesses from mask mandates and other instances in which local government comes between them and their customers.

The legislation alters the sections of state law dealing with the powers of counties and municipalities to enact ordinances and resolutions. It prevents those actions from denying customers “the ability to access goods or services” or requiring businesses to do so.

And in the part of state law dealing with local health board authority, it adds that same prohibition to regulations dealing with communicable diseases that apply to an entire jurisdiction.

Rep. Jedediah Hinkle, the Belgrade Republican who sponsored the bill, remains critical of regulations that forced businesses to require that customers wear masks on their premises.

“By compelling the business to be an enforcement arm, they were commandeering private resources,” Hinkle said, adding that he felt other health regulations in response to the pandemic were equally onerous. “The feedback I got from businesses was basically that they’re being threatened, the health board is going to try to pull your business license or your liquor license or try to sue you.”

And he said the reaction by local officials — particularly in more urban counties like Gallatin — is simply part of a campaign to paint him and other Republican lawmakers as irresponsible.

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“I think that they’re overreacting in that they want the public to think that well, the health board can do nothing now, because of the Legislature,” Hinkle said.

It’s not just public health officials, though. The nonpartisan Montana Association of Counties, or MACo, often takes the lead not just in lobbying state lawmakers on behalf of county governments, but also advising counties as they work to implement fresh laws.

“The language eliminating local government authority to enforce any resolution or ordinance that interferes with a customer and business relationship is very broad and not limited to public health,” Eric Bryson, the group’s executive director, wrote in an email.

He declined to elaborate further as the organization continues to work through the details, but added, “Counties have many, many resolutions and ordinances that were previously enforceable but now may not be.”

RiverStone Health, the interlocal health department serving Billings and Yellowstone County, will continue enforcing the code, but reads the new law as preventing the adoption of any new regulations, as well as preventing enforcement of any COVID-related rules (the county dropped its mask mandate in January).

“We understand what the intent of the legislation was, in terms of masking, but when I look at it, it appears that adopting (health) regulations remains unlawful,” said Barbara Schneeman, the vice president of public affairs for RiverStone.

But officials there remained concerned about its effect if there’s another health emergency, such as resurgence of coronavirus cases due to new variants, or a sudden outbreak of measles cases, as has happened in other states. Schneeman noted the law includes a prohibition on quarantine orders if someone has been exposed to a contagious disease but hasn’t tested positive.

“If there’s 10 people in a room with one person that has measles, nine of those other people are going to get measles. That’s how infectious it is,” she said. “So it could spread through a community very quickly.”

HB 257 received an amendatory veto by the governor before he ultimately signed it. The changes requested by Gianforte, a Republican, included language stating that the restrictions on ordinances and resolutions don’t affect the ability of local health boards or health officers from enforcing “all lawfully adopted regulations, directives and orders.”

That provision, and especially the term “lawfully,” have provoked more head-scratching from local officials.

“On one hand it’s saying local government entities cannot lawfully approve these rules, and on another it’s saying nothing in this is preventing the health officer from taking action to enforce those rules,” former Gallatin City-County Health Officer Matt Kelley said last month.

But across the Continental Divide in Missoula County, Deputy County Attorney Anna Conley said she wasn’t aware of any resolutions or ordinances that would be affected by the new law. She pointed specifically to the language addressing “lawfully adopted” regulations as a basis for her interpretation.

“That, in my opinion, would apply to all health board provisions and state laws related to private businesses and sanitation,” Conley said. “I don’t believe that this bill has an important (impact) on the city-county health department’s ability to enforce Missoula’s city-county health code.”

Missoula County rescinded its own mask mandate last month not due to HB 257, but because it reached the vaccination level it had established as a benchmark for easing the COVID rules. Noting the county’s success keeping per-capita cases low relative to the rest of the state, county Health Officer Ellen Leahy told her local health board last month the new law would have hampered those efforts.

Hinkle maintained, however, that his legislation — which underwent four iterations between being introduced and signed into law — was a carefully vetted measure.

And he added the alarm from local health officials rings a familiar bell: “It’s ironic how these local boards of health can be imposing restrictions on our local businesses for over a year — to the extent that it’s actually shutting businesses down, and people are losing their livelihoods — but when the Legislature comes along and places a small limitation on local boards of health, that would just protect businesses from having to deny and turn away their own customers, the local boards are screaming like the world is coming to an end.”