As "Compromise" Public Health Regulation Bill Nears Law, Public Health Officer Reflects on a Year of Scrutiny

Butte-Silver Bow County Health Officer Karen Sullivan was enjoying a drink in a Butte brewery after work when she said she got the call.

For two months, she and her fellow county health officials across the state had been keeping tabs on reports of an outbreak of a strange new virus in Wuhan, China, but up until the evening of March 13, 2020, it had been business as usual for Sullivan and the county health department. Then a state official rang her at 6:30 p.m.

"How's your Friday?" she recalls the official asking.

"Great. I'm having a beer with my husband," Sullivan replied.

"Well, you need to get back to the office."

The state informed Sullivan that one of the first four known cases of the novel coronavirus in Montana had popped up in her county, and she needed to conduct contact tracing immediately.

As Sullivan tells it, that first night COVID-19 arrived in the state marked a seismic shift not just in the lives of regular Montanans, but particularly in the lives of public health officials who suddenly found themselves overworked, understaffed and under the microscope.

That scrutiny has percolated through the public and into the Montana Legislature, where a slate of bills popped up early in the session that sought to limit the power and scope of public health officials. After much debate -- some of it contentious -- the single bill that emerged is House Bill 121, which the Legislature passed in March and sent to Gov. Greg Gianforte April 6. Both the lawmaker who took charge to assemble the bill and Sullivan say HB 121 is a compromise that may help bring elected officials and public health workers closer together.

The Public Health Officer

The Butte-Silver Bow County Board of Health appointed Sullivan to her role as health officer just over seven years ago, putting her in charge of managing public health programs for a district of more than 35,000 people.

Sullivan oversees a broad array of health services the county provides to the public, following the mission of the health department to "protect and improve the health of our residents." The department conducts health inspections of restaurants, mobile home courts, breweries and distilleries, public pools, hotels and bars, offers family planning clinics, conducts sex education courses in schools, administers vaccination programs, hosts HIV education and prevention clinics and more.

So when the COVID-19 pandemic reached Montana, Sullivan's job pivoted away from standard public health fare that typically flies "under the radar" and into contact tracing, virus testing and efforts to mitigate the spread of the virus. It was the latter of those responsibilities that thrust public health into the spotlight.

In the early weeks of the pandemic, Sullivan and the health department acted swiftly to close businesses that posed a high risk of spreading COVID-19. Butte, known for its rich Irish heritage, was poised to experience its annual influx of revelers celebrating St. Patrick's Day, but Sullivan and county officials knew that flood would pose a major health risk and shut down all festivities.

"I can tell you, it was nerve wracking because St. Patrick's day brings a lot of people and money to Butte," Sullivan said, reflecting on the decision. "It was hard."

A decision made even harder, she said, by the lack of information regarding the new strain of coronavirus. In the early months of the pandemic, public health workers were operating with limited knowledge about how the virus could be transmitted, what symptoms it caused and how dangerous it could be. Much of Sullivan's time early on was devoted to tracking down personal protective equipment and tracing contacts in an ever-growing web of potential exposures to the virus.

Sullivan said she realized that the public was scruitizing the actions of public health workers more than ever before when the debate over mask wearing became politicized. Suddenly, Butte-Silver Bow County's mask mandate was no longer universally accepted as a method of preventing viral spread, but of stifling personal freedoms.

"And then when we had to shut down businesses, the comeback to that, which is a public health intervention we took, is 'How am I going to feed my family?'" Sullivan said. "It began to occur to people that unelected people were making these huge decisions that affect our communities."

Sullivan said she understood the growing frustration with restrictions on businesses, but said she kept hoping federal relief would arrive, which it eventually did in the form of the two "CARES" acts. But that wasn't enough to stop the impending 67th Montana Legislative Session from reviewing the relationship between appointed public health workers and elected officials.

The Lawmaker

Rep. David Bedey, R-Hamilton, introduced HB 121 in the first weeks of the session with one goal at the forefront: hold public health officials "accountable" to voters. Currently, all public health boards in Montana are appointed by city or county elected officials, but are not directly responsible to voters.

Bedey says he took notice of that relationship even before the pandemic thrust it into the limelight. During the interim, he attended some meetings of the Ravalli County Board of Health, which met in a building right across the alley from his house in Hamilton. There, he heard disgruntled citizens voicing their complaints about various health regulations to the board without any sort of recourse available to them.

"I was already thinking about the relationships between boards of public health and elected officials; who should be taking the heat from the public," Bedey said in an interview. "In my mind, those of us who get elected ought to be taking the heat. We're the ones who are directly responsible to the people, and public health officials have an important job to do."

Thus, HB 121 was born. The bill would allow the local elected bodies that oversee boards of health to revise or revoke the boards' mandates and regulations, and would force orders issued during a declared state of emergency to expire when that emergency ends. It would also limit punishments to breaking health rules to civil fines instead of criminal penalties.

Bedey said the bill would help restore regulatory balance during future pandemics by forcing equal consideration of not just one, but three tenets: "physical health, spiritual health and economic health." He said public health workers did a "superb" job protecting the first tenant, but by the nature of their focus, could not equally consider the latter two.

The Compromise

Bedey's bill emerged from three bills that each sought to regulate public health, but in dramatically different ways. When the time came to iron them into a single bill, Bedey took charge, incorporating some elements from House Bill 236, sponsored by Rep. Matt Regier, R-Kalispell. That bill wanted stricter limits placed on public health officials, requiring them to receive approval from an elected body prior to issuing orders or regulations. House Bill 145, sponsored by Rep. Paul Fielder, R-Thompson Falls, went further than either bill, only allowing public health boards to issue "recommendations," not orders. That bill died early in the process and was not folded into HB 121.

But Bedey's bill didn't incorporate most of the stricter provisions in Regier's. The main change to HB 121 from Regier is a clause prohibiting public health officials from restricting in-person attendance at religious gatherings. In a phone call, Regier said he was pleased with HB121, though he wished a provision changing the definition of "quarantine" to match that of "isolation" had made it in.

"I'm happy the way that turned out," Regier said. "In the Legislature, nobody ever gets everything they want."

Through repeated meetings with stakeholders in public health and interested members of the public, Bedey said he did his best to ease concerns with HB 121 by taking the input he received and tweaking provisions in the bill.

One outcome of those meetings was an amendment clarifying that HB 121 is not intended to "hinder, slow, or remove nonemergency-related powers granted to a local board of health," a concern raised by some health officials during the bill's path through the Legislature.

Bedey repeatedly praised public health workers for their devotion to saving lives, and said he hoped HB 121 would shift the "burden" of public scrutiny that those workers faced through the pandemic onto elected officials.

"Lawmaking is a matter of putting something out there, thinking about it, and responding to people's legitimate concerns," Bedey said. "I think as we tailored the bill a bit, people started to accept it."

However, Democrats opposed the bill throughout its time in the Legislature, arguing it put undue limitations on the ability of public health workers to properly do their jobs. The Senate passed the bill on party lines, and almost all Democrats voted against the bill in the House.

"It's just an attack on local control over and over and over again," Senate Minority Leader Jill Cohenour, D-East Helena, said in a press call. "That concentration of power into the Legislature and the governor's office has been a theme of the session all along."

For her part, Sullivan said that, while she cannot take a position on HB 121, she respects Bedey for his devoted listening to input from others in her profession.

"He's been so respectful to our position and conveyed that he has always held public health people in high regard. You don't know what that means coming from a policymaker today," Sullivan said. "We've been called 'unelected bureaucrats who overreach.' No one in public health in Montana feels like our work has been overreach."

And, while Sullivan acknowledged the change might take some getting used to, she expressed optimism that some good will come of it.

"Maybe the silver lining here is that elected officials and others will become more aware of public health and why it has deep meaning to our collective health, at the end of the day."

Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at [email protected].