Health care providers and patients sue over vax discrimination law

by Alex Sakariassen | Montana Free Press

A group of health care providers, individual patients and the Montana Medical Association filed a lawsuit Wednesday challenging the state’s new vaccination-discrimination law. The complaint was filed in U.S. District Court in Missoula and lists Attorney General Austin Knudsen and Montana Commissioner of Labor and Industry Laurie Esau as defendants.

The plaintiffs say the new law puts hospitals and private physicians at risk of violating the Americans with Disabilities Act by limiting access for patients with compromised immune systems and preventing providers from taking “reasonable precautions” to protect disabled patients and employees from exposure to COVID-19. The complaint also claims similar risks of violating the federal Occupational Health and Safety Act and various rights guaranteed under the U.S. and Montana constitutions, including the right to a safe and healthy environment.

“Montana [House Bill] 702 prevents persons with compromised immune systems … from enjoying a healthy environment and securing their right to safe and healthy medical care,” the complaint read.

The lawsuit doesn’t seek to overturn HB 702, but rather asks the court bar the state from enforcing the law against hospitals and private physicians’ offices. Emails sent to Knudsen’s office and to the Montana Medical Association seeking comment for this story were not immediately returned.

HB 702 added vaccination status to the list of classes protected under the Montana Human Rights Act, prohibiting government agencies and businesses from denying goods, services, public accommodation, educational opportunities or employment to individuals based on whether they’re vaccinated. The law enables people who believe they’ve been discriminated against on those grounds to file a complaint with the Montana Human Rights Commission, housed at the Department of Labor and Industry. HB 702, which applies not just to the COVID-19 vaccine but to vaccines for all communicable diseases, passed the Legislature in the waning days of the session on largely party lines after weeks of intense debate.

Much of that debate centered on concerns expressed by members of the health care community, some of them nurses opposed to the prospect of workplace vaccination requirements. Other medical leaders expressed concern that the bill would jeopardize federal funding by forcing facilities into violation of Medicare and Medicaid regulations. The latter issue prompted Gov. Greg Gianforte to return HB 702 to lawmakers with amendments of his own, which included exempting long-term care facilities from the law and allowing hospitals to implement additional safety procedures for employees confirmed or assumed to be unvaccinated.

In recent months, HB 702 has sown confusion among health care providers, county health officials and school districts about how to follow CDC guidance on COVID-19 protocols without violating the new state law.

Wednesday’s lawsuit, the first to challenge HB 702, notes that the law offers hospitals “somewhat greater latitude” to mitigate the risks of COVID-19 transmission than it does to physicians operating in private offices. Even so, the complaint says, “it still limits the ability of hospitals to exercise their professional judgment in determining the conditions of employment of those persons in clinic settings and otherwise, when necessary to address the safety of patients, providers, and staff.”

The list of plaintiffs challenging the law includes Providence Health & Services, a nonprofit hospital in Missoula, and six individual Montana patients, each of whom “suffers from one or more chronic medical conditions, which require frequent care from physicians,” making them “especially susceptible to acquiring an infectious disease.” One of those patients, according to the complaint, has a newborn daughter who is not eligible for the COVID-19 vaccine. For the sake of her and her daughter, the complaint read, the plaintiff must “avoid [private physician offices] and hospitals that employ unvaccinated workers or do not take necessary measures to mitigate against the risk caused by unvaccinated workers.”