Republican legislators in more than half of U.S. states, spurred on by voters angry about lockdowns and mask mandates, are taking away the powers state and local officials use to protect the public against infectious diseases.
A KHN review of hundreds of pieces of legislation found that, in all 50 states, legislators have proposed bills to curb such public health powers since the covid-19 pandemic began. While some governors vetoed bills that passed, at least 26 states pushed through laws that permanently weaken government authority to protect public health. In three additional states, an executive order, ballot initiative or state Supreme Court ruling limited long-held public health powers. More bills are pending in a handful of states whose legislatures are still in session.
In Arkansas, legislators banned mask mandates except in private businesses or state-run health care settings, calling them “a burden on the public peace, health, and safety of the citizens of this state.” In Idaho, county commissioners, who typically have no public health expertise, can veto countywide public health orders. And in Kansas and Tennessee, school boards, rather than health officials, have the power to close schools.
President Joe Biden last Thursday announced sweeping vaccination mandates and other covid measures, saying he was forced to act partly because of such legislation: “My plan also takes on elected officials in states that are undermining you and these lifesaving actions.”
All told:
In at least 16 states, legislators have limited the power of public health officials to order mask mandates, or quarantines or isolation. In some cases, they gave themselves or local elected politicians the authority to prevent the spread of infectious disease.
At least 17 states passed laws banning covid vaccine mandates or passports, or made it easier to get around vaccine requirements.
At least nine states have new laws banning or limiting mask mandates. Executive orders or a court ruling limit mask requirements in five more.
Much of this legislation takes effect as covid hospitalizations in some areas are climbing to the highest numbers at any point in the pandemic, and children are back in school.
“We really could see more people sick, hurt, hospitalized or even die, depending on the extremity of the legislation and curtailing of the authority,” said Lori Tremmel Freeman, head of the National Association of County and City Health Officials.
Public health academics and officials are frustrated that they, instead of the virus, have become the enemy. They argue this will have consequences that last long beyond this pandemic, diminishing their ability to fight the latest covid surge and future disease outbreaks, such as being able to quarantine people during a measles outbreak.
“It’s kind of like having your hands tied in the middle of a boxing match,” said Kelley Vollmar, executive director of the Jefferson County Health Department in Missouri.
But proponents of the new limits say they are a necessary check on executive powers and give lawmakers a voice in prolonged emergencies. Arkansas state Sen. Trent Garner, a Republican who co-sponsored his state’s successful bill to ban mask mandates, said he was trying to reflect the will of the people.
“What the people of Arkansas want is the decision to be left in their hands, to them and their family,” Garner said. “It’s time to take the power away from the so-called experts, whose ideas have been woefully inadequate.”
After initially signing the bill, Republican Gov. Asa Hutchinson expressed regret, calling a special legislative session in early August to ask lawmakers to carve out an exception for schools. They declined. The law is currently blocked by an Arkansas judge who deemed it unconstitutional. Legal battles are ongoing in other states as well.
Legislators there also passed limits on local officials: If jurisdictions add public health rules stronger than state public health measures, they could lose 20% of some grants.
Losing the ability to order quarantines has left Karen Sullivan, health officer for Montana’s Butte-Silver Bow department, terrified about what’s to come — not only during the covid pandemic but for future measles and whooping cough outbreaks.
“In the midst of delta and other variants that are out there, we’re quite frankly a nervous wreck about it,” Sullivan said. “Relying on morality and goodwill is not a good public health practice.”
While some public health officials tried to fight the national wave of legislation, the underfunded public health workforce was consumed by trying to implement the largest vaccination campaign in U.S. history and had little time for political action.
Freeman said her city and county health officials’ group has meager influence and resources, especially in comparison with the American Legislative Exchange Council, a corporate-backed conservative group that promoted a model bill to restrict the emergency powers of governors and other officials. The draft legislation appears to have inspired dozens of state-level bills, according to the KHN review. At least 15 states passed laws limiting emergency powers. In some states, governors can no longer institute mask mandates or close businesses, and their executive orders can be overturned by legislators.
When North Dakota’s legislative session began in January, a long slate of bills sought to rein in public health powers, including one with language similar to ALEC’s. The state didn’t have a health director to argue against the new limits because three had resigned in 2020.
Fighting the bills not only took time, but also seemed dangerous, said Renae Moch, public health director for Bismarck, who testified against a measure prohibiting mask mandates. She then received an onslaught of hate mail and demands for her to be fired.
The new laws are meant to reduce the power of governors and restore the balance of power between states’ executive branches and legislatures, said Jonathon Hauenschild, director of the ALEC task force on communications and technology. “Governors are elected, but they were delegating a lot of authority to the public health official, often that they had appointed,” Hauenschild said.
‘Like Turning Off a Light Switch’
When the Indiana legislature overrode the governor’s veto to pass a bill that gave county commissioners the power to review public health orders, it was devastating for Dr. David Welsh, the public health officer in rural Ripley County.
People immediately stopped calling him to report covid violations, because they knew the county commissioners could overturn his authority. It was “like turning off a light switch,” Welsh said.
Another county in Indiana has already seen its health department’s mask mandate overridden by the local commissioners, Welsh said.
He’s considering stepping down after more than a quarter century in the role. If he does, he’ll join at least 303 public health leaders who have retired, resigned or been fired since the pandemic began, according to an ongoing KHN and AP analysis. That means 1 in 5 Americans have lost a local health leader during the pandemic.
“This is a deathblow,” said Brian Castrucci, CEO of the de Beaumont Foundation, which advocates for public health. He called the legislative assault the last straw for many seasoned public health officials who have battled the pandemic without sufficient resources, while also being vilified.
Public health groups expect further combative legislation. ALEC’s Hauenschild said the group is looking into a Michigan law that allowed the legislature to limit the governor’s emergency powers without Democratic Gov. Gretchen Whitmer’s signature.
Curbing the authority of public health officials has also become campaign fodder, particularly among Republican candidates running further on the right. While Republican Idaho Gov. Brad Little was traveling out of state, Lt. Gov. Janice McGeachin signed a surprise executive order banning mask mandates that she later promoted for her upcoming campaign against him. He later reversed the ban, tweeting, “I do not like petty politics. I do not like political stunts over the rule of law.”
Fawbush was a sponsor of 1989 legislation during the AIDS crisis. It banned employers from requiring health care workers, as a condition of employment, to get an HIV vaccine, if one became available.
But 32 years later, that means Oregon cannot require health care workers to be vaccinated against covid. Calling lawmaking a “messy business,” Fawbush said he certainly wouldn’t have pushed the bill through if he had known then what he does now.
“Legislators need to obviously deal with immediate situations,” Fawbush said. “But we have to look over the horizon. It’s part of the job responsibility to look at consequences.”
In the rural northeastern corner of Missouri, Scotland County Hospital has been so low on staff that it sometimes had to turn away patients amid a surge in covid-19 cases.
The national covid staffing crunch means CEO Dr. Randy Tobler has hired more travel nurses to fill the gaps. And the prices are steep — what he called “crazy” rates of $200 an hour or more, which Tobler said his small rural hospital cannot afford. A little over 60% of his staff is fully vaccinated. Even as covid cases rise, though, a vaccine mandate is out of the question.
“If that becomes our differential advantage, we probably won’t have one until we’re forced to have one,” Tobler said. “Maybe that’s the thing that will keep nurses here.”
As of Thursday, about 39% of U.S. hospitals had announced vaccine mandates, said Colin Milligan, a spokesperson for the American Hospital Association. Across Missouri and the nation, hospitals are weighing more than patient and caregiver health in deciding whether to mandate covid vaccines for staffers.
The market for health care labor, strained by more than a year and a half of coping with the pandemic, continues to be pinched. While urban hospitals with deeper pockets for shoring up staff have implemented vaccine mandates, and may even use them as a selling point to recruit staffers and patients, their rural and regional counterparts are left with hard choices as cases surge again.
“Obviously, it’s going to be a real challenge for these small, rural hospitals to mandate a vaccine when they’re already facing such significant workforce shortages,” said Alan Morgan, head of the National Rural Health Association.
Without vaccine mandates, this could lead to a desperate cycle: Areas with fewer vaccinated residents likely have fewer vaccinated hospital workers, too, making them more likely to be hard hit by the delta variant sweeping America. In the short term, mandates might drive away some workers. But the surge could also squeeze the hospital workforce further as patients flood in and staffers take sick days.
Rural covid mortality rates were almost 70% higher on average than urban ones for the week ending Aug. 15, according to the Rural Policy Research Institute.
Despite the scientific knowledge that covid vaccinations sharply lower the risk of infection, hospitalization and death, the lack of a vaccine mandate can serve as a hospital recruiting tool. In Nebraska, the state veterans affairs’ agency prominently displays the lack of a vaccine requirement for nurses on its job site, The Associated Press reported.
It all comes back to workforce shortages, especially in more vaccine-hesitant communities, said Jacy Warrell, executive director of the Rural Health Association of Tennessee. She pointed out that some regional health care systems don’t qualify for staffing assistance from the National Guard as they have fewer than 200 beds. A potential vaccine mandate further endangers their staffing numbers, she said.
“They’re going to have to think twice about it,” Warrell said. “They’re going to have to weigh the risk and benefit there.”
The mandates are having ripple effects throughout the health care industry. The federal government has mandated that all nursing homes require covid vaccinations or risk losing Medicare and Medicaid reimbursements, and industry groups have warned that workers may jump to other health care settings. Meanwhile, Montana has banned vaccine mandates altogether, and the Montana Hospital Association has gotten one call from a health care worker interested in working in the state because of it, said spokesperson Katy Peterson.
It’s not just nurses at stake with vaccine mandates. Respiratory techs, nursing assistants, food service employees, billing staff and other health care workers are already in short supply. According to the latest KFF/The Washington Post Frontline Health Care Workers Survey, released in April, at least one-third of health care workers who assist with patient care and administrative tasks have considered leaving the workforce.
The combination of burnout and added stress of people leaving their jobs has worn down the health care workers the public often forgets about, said interventional radiology tech Joseph Brown, who works at Sutter Roseville Medical Center outside Sacramento, California.
This has a domino effect, Brown said: More of his co-workers are going on stress and medical leave as their numbers dwindle and while hospitals run out of beds. He said nurses’ aides already doing backbreaking work are suddenly forced to care for more patients.
“Explain to me how you get 15 people up to a toilet, do the vitals, change the beds, provide the care you’re supposed to provide for 15 people in an eight-hour shift and not injure yourself,” he said.
In Missouri, Tobler said his wife, Heliene, is training to be a volunteer certified medical assistant to help fill the gap in the hospital’s rural health clinic.
Tobler is waiting to see if the larger St. Louis hospitals lose staff in the coming weeks as their vaccine mandates go into effect, and what impact that could have throughout the state.
In the hard-hit southwestern corner of Missouri, CoxHealth president and CEO Steve Edwards said his health system headquartered in Springfield is upping its minimum wage to $15.25 an hour to compete for workers.
While the estimated $25 million price tag of such a salary boost will take away about half the hospital system’s bottom line, Edwards said, the investment is necessary to keep up with the competitive labor market and cushion the blow of the potential loss of staffers to the hospital’s upcoming Oct. 15 vaccine mandate.
“We’re asking people to take bedpans and work all night and do really difficult work and maybe put themselves in harm’s way,” he said. “It seems like a much harder job than some of these 9-to-5 jobs in an Amazon distribution center.”
Two of his employees died from covid. In July alone, Edwards said 500 staffers were out, predominantly due to the virus. The vaccine mandate could keep that from happening, Edwards said.
“You may have the finest neurosurgeon, but if you don’t have a registration person everything stops,” he said. “We’re all interdependent on each other.”
But California’s Brown, who is vaccinated, said he worries about his colleagues who may lose their jobs because they are unwilling to comply with vaccine mandates.
California has mandated that health care workers complete their covid vaccination shots by the end of September. The state is already seeing traveling nurses turn down assignments there because they do not want to be vaccinated, CalMatters reported.
Since the mandate applies statewide, workers cannot go work at another hospital without vaccine requirements nearby. Brown is frustrated that hospital administrators and lawmakers, who have “zero covid exposure,” are the ones making those decisions.
“Hospitals across the country posted signs that said ‘Health care heroes work here.’ Where is the reward for our heroes?” he asked. “Right now, the hospitals are telling us the reward for the heroes: ‘If you don’t get the vaccine, you’re fired.’”
Published courtesy of KHN (Kaiser Health News) a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.
A new link has been added to the Nurse Licensure Compact. In February 2022, Vermont will become the 35th state to allow nurses from other states to practice and treat patients without re-licensure. State legislators are also seeking other ways to reduce Vermont’s nursing shortage, and other measures under consideration include nursing school loan forgiveness and allowing nursing students to perform more clinical duties.
Vermont nurses are not universally applauding the law’s passage. The Vermont Federation of Nurses and Health Professionals expressed concern that the Licensure Compact will increase the flow of nurses departing from Vermont to seek higher-paying positions in states with a lower cost of living. However, this is a universal issue in states with substantial rural areas, and states like Oregon and Montana have been setting the pace with retention programs offering NPs and other healthcare providers tax credits and insurance incentives as well as school loan repayment and forgiveness, and Vermont appears to be pursuing a similar game plan.
Vermont Secretary of State Jim Condos praised the new law, commenting that the Nurse Licensure Compact bill “will ensure that qualified nurses from other states in the compact do not have to jump through hoops to practice in Vermont. COVID-19 showed how important it is to be able to quickly and efficiently license those qualified to care for Vermont patients in times of need.”
Office of Professional Regulation Director Lauren Hibbert chimed in, saying, that the bill “ensures quality care for Vermonters while providing mobility to Vermont nurses and nurses across the nation who wish to practice in the Green Mountain State. Our mission at the Office of Professional Regulation is to ensure the public’s safety and protect Vermonters from professional misconduct while making sure that qualified professionals who want to practice in Vermont do not face burdensome barriers to licensure.”
The ever-present nursing shortage is becoming dire during the pandemic. COVID-19 cases are surging in rural places across the Mountain States and Midwest, and when it hits health care workers, ready reinforcements aren’t easy to find.
In Montana, pandemic-induced staffing shortages have shuttered a clinic in the state’s capital, led a northwestern regional hospital to ask employees exposed to COVID-19 to continue to work and emptied a health department 400 miles to the east.
“Just one more person out and we wouldn’t be able to keep the surgeries going,” said Dr. Shelly Harkins, chief medical officer of St. Peter’s Health in Helena, a city of roughly 32,000 where cases continue to spread. “When the virus is just all around you, it’s almost impossible to not be deemed a contact at some point. One case can take out a whole team of people in a blink of an eye.”
In North Dakota, where cases per resident are growing faster than any other state, hospitals may once again curtail elective surgeries and possibly seek government aid to hire more nurses if the situation gets worse, North Dakota Hospital Association President Tim Blasl said.
“How long can we run at this rate with the workforce that we have?” Blasl said. “You can have all the licensed beds you want, but if you don’t have anybody to staff those beds, it doesn’t do you any good.”
The northern Rocky Mountains, Great Plains and Upper Midwest are seeing the highest surge of COVID-19 cases in the nation, as some residents have ignored recommendations for curtailing the virus, such as wearing masks and avoiding large gatherings. Montana, Idaho, Utah, Wyoming, North Dakota, South Dakota, Nebraska, Iowa and Wisconsin have recently ranked among the top 10 U.S. states in confirmed cases per 100,000 residents over a seven-day period, according to an analysis by The New York Times.
Such coronavirus infections — and the quarantines that occur because of them — are exacerbating the health care worker shortage that existed in these states well before the pandemic. Unlike in the nation’s metropolitan hubs, these outbreaks are scattered across hundreds of miles. And even in these states’ biggest cities, the ranks of medical professionals are in short supply. Specialists and registered nurses are sometimes harder to track down than ventilators, N95 masks or hospital beds. Without enough care providers, patients may not be able to get the medical attention they need.
Hospitals have asked staffers to cover extra shifts and learn new skills to cover the shortage. They have brought in temporary workers from other parts of the country and transferred some patients to less-crowded hospitals. But, at St. Peter’s Health, if the hospital’s one kidney doctor gets sick or is told to quarantine, Harkins doesn’t expect to find a backup.
“We make a point to not have excessive staff because we have an obligation to keep the cost of health care down for a community — we just don’t have a lot of slack in our rope,” Harkins said. “What we don’t account for is a mass exodus of staff for 14 days.”
Some hospitals are already at patient capacity or are nearly there. That’s not just because of the growing number of COVID-19 patients. Elective surgeries have resumed, and medical emergencies don’t pause for a pandemic.
Some Montana hospitals formed agreements with local affiliates early in the pandemic to share staff if one came up short. But now that the disease is spreading fast — and widely — the hope is that their needs don’t peak all at once.
Montana state officials keep a list of primarily in-state volunteer workers ready to travel to towns with shortages of contact tracers, nurses and more. But during a press conference on Oct. 15, Democratic Gov. Steve Bullock said the state had exhausted that database, and its nationwide request for National Guard medical staffing hadn’t brought in new workers.
“If you are a registered nurse, licensed practical nurse, paramedic, EMT, CNA or contact tracer, and are able to join our workforce, please do consider joining our team,” Bullock said.
This month, Kalispell Regional Medical Center in northwestern Montana even stopped quarantining COVID-exposed staff who remain asymptomatic, a change allowed by Centers for Disease Control and Prevention guidelines for health facilities facing staffing shortages.
“That’s very telling for what staffing is going through right now,” said Andrea Lueck, a registered nurse at the center. “We’re so tight that employees are called off of quarantine.”
Financial pressure early in the pandemic led the hospital to furlough staff, but it had to bring most of them back to work because it needs those bodies more than ever. The regional hub is based in Flathead County, which has recorded the state’s second-highest number of active COVID-19 cases.
Mellody Sharpton, a hospital spokesperson, said hospital workers who are exposed to someone infected with the virus are tested within three to five days and monitored for symptoms. The hospital is also pulling in new workers, with 25 traveling health professionals on hand and another 25 temporary ones on the way.
But Sharpton said the best way to conserve the hospital’s workforce is to stop the disease surge in the community.
Earlier in the pandemic, Central Montana Medical Center in Lewistown, a town of fewer than 6,000, experienced an exodus of part-time workers or those close to retirement who decided their jobs weren’t worth the risk. The facility recently secured two traveling workers, but both backed out because they couldn’t find housing. And, so far, roughly 40 of the hospital’s 322 employees have missed work for reasons connected to COVID-19.
“We’re at a critical staffing shortage and have been since the beginning of COVID,” said Joanie Slaybaugh, Central Montana Medical Center’s director of human resources. “We’re small enough, everybody feels an obligation to protect themselves and to protect each other. But it doesn’t take much to take out our staff.”
Roosevelt County, where roughly 11,000 live on the northeastern edge of Montana, had one of the nation’s highest rates of new cases as of Oct. 15. But by the end of the month, the county health department will lose half of its registered nurses as one person is about to retire and another was hired through a grant that’s ending. That leaves only one registered nurse aside from its director, Patty Presser. The health department already had to close earlier during the pandemic because of COVID exposure and not enough staffers to cover the gap. Now, if Presser can’t find nurse replacements in time, she hopes volunteers will step in, though she added they typically stay for only a few weeks.
“I need someone to do immunizations for my community, and you don’t become an immunization nurse in 14 days,” Presser said. “We don’t have the workforce here to deal with this virus, not even right now, and then I’m going to have my best two people go.”
Back in Helena, Harkins said St. Peter’s Health had to close a specialty outpatient clinic that treats chronic diseases for two weeks at the end of September because the entire staff had to quarantine.
Now the hospital is considering having doctors take turns spending a week working from home, so that if another wave of quarantines hits in the hospital, at least one untainted person can be brought back to work. But that won’t help for some specialties, like the hospital’s sole kidney doctor.
Every time Harkins’ phone rings, she said, she takes a breath and hopes it’s not another case that will force a whole division to close.
“Because I think immediately of the hundreds of people that need that service and won’t have it for 14 days,” she said.
Published courtesy of KHN (Kaiser Health News), a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation), which is not affiliated with Kaiser Permanente.
Mountain States editor Matt Volz contributed to this story.
Nurse of the Week Cathy Scholtens is known as a nurse who will go the extra mile for her neighbors and her pediatric patients… So well-known in fact, that the Missoula, Montana pediatric ICU nurse received two awards in one month!
First, Cathy’s hospital, Community Medical Center, presented her with their 2020 Mercy Award. The Mercy Award recognized her “Relentless dedication to go beyond the call of duty to serve patients and the community,” citing numerous instances in which Scholten extended her nursing work beyond the walls of the hospital, including fundraising efforts to get lung transplants for two young brothers with congenital pulmonary disease, organizing the donation of thousands of N-95 masks for her hospital, and providing home bedside care—from changing dressings and administering injections to managing medical appointments—for an elderly neighbor with cancer.
In her response to the Mercy Award, Scholtens’ first thought (unsurprisingly) was of others: “You don’t get this kind of award in a vacuum. To me it’s kind of my whole unit’s award. We have amazing doctors, amazing nurses and amazing staff. But I’m really proud to have my name on it.”
Later that month, when Scholtens rounded a corner and found a hall filled with staff, family, and friends, naturally “I thought it was a surprise party for having received the Mercy Award.” Or, so she thought until she saw the giant daisy displayed on a large wall-screen. Cathy, who has often made videos for Daisy Awards, realized that she was receiving yet another award, a Daisy Foundation Award for Extraordinary Nurses! According to the comments from her co-workers, her Daisy Award was also well-deserved. As one staffer said, “If Cathy could give CPR with one hand while keeping her arm around the parent with the other, she would do it.”
As she is retiring in two years, Scholtens found the recognition especially moving: “It’s nice to know that your life’s work is appreciated and that you are doing the right thing and you are doing it right.” Again, however, she is quick to share credit. Of the dual award accolade, she said, “It’s neat. I’m super proud,” but added, “I’m also blessed with a family that lets me do all this extra stuff while they do all the stuff that runs this house. I’m down on my computer making silly magnets for people and they are up there doing the dishes. Like I said, you don’t do anything in a vacuum.”
Prompted by the World Health Organization initiative to have 80% of
nurses possess a bachelor’s degree by 2020, in fall 2020, Salish
Kootenai College will become the first tribal college
to offer a Bachelor of Science in Nursing (BSN). Located in Montana,
Salish Kootenai College serves the Confederated Salish and Kootenai
Tribes of the Flathead Reservation, a federally recognized tribe.
A major consideration in making this transition, according to nursing
program director Lisa Harmon, is that a BSN is swiftly becoming an
entry-level requirement for nurses. Harmon notes that a BSN will also
open up more opportunities for graduating students, as both privately
owned facilities as well as federal agencies such as the Indian
Health Services (IHS) require a bachelor’s degree from all nursing
applicants. For graduates of the Salish Kootenai program, which is
designed to prepare Native American nurses for professional practice
and leadership in rural and tribal communities, the prospect of
working for the IHS is a particularly strong consideration as
students often choose to work within their home reservation, where
IHS is a significant source of nursing opportunities.
Harmon says, “We
want to be doing the right thing for our Native American graduate
nurses and have them be able to work in these IHS facilities. Or
wherever anybody wants to go, it just gives so much more employment
opportunity.”
While the college
offers an “RN to BSN” option, Harmon notes that many federal
programs will only subsidize a first degree, and adds, “As the
student loan crisis ramps up, which yes the United States has a
student loan crisis, there’s just more restrictions. And (the RN to
BSN program) just wasn’t doing our students any good. So then they
couldn’t finish their bachelor’s because they didn’t qualify
anymore for student loans. Now we are offering this four-year degree
which will be better all around, for financial aid and scholarships.”
Of the new BSN
program, which is two years in the making, Harmon remarks, “We are
just excited that we are offering what students need,” Harmon said.
“We’ll be the first tribal college in the United States to offer
this four-year BSN. I feel really good about it. I feel like it’s
the right thing to do.”
For more details
on the Salish Kootenai College BSN, program, visit here.
