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Currently barred under state law from requiring that employees get the COVID-19 vaccine, Montana’s nursing homes will have to begin doing so next month or risk losing Medicaid and Medicare funding under an emergency regulation announced by President Joe Biden on Wednesday.

Montana’s recently enacted law to prevent discrimination based on vaccine status prohibits most businesses in the state from mandating that their employees get vaccinated, including in hospitals, nursing homes and other health care facilities. But an exemption in House Bill 702 allows long-term care facilities to require vaccinations for staff if required as a condition to receive federal funding from the Centers for Medicaid and Medicare (CMS).

Wednesday’s announcement comes amid a surge in coronavirus cases and hospitalizations in Montana and elsewhere around the country, driven by the highly contagious delta variant of the coronavirus. And it appeared likely to partially reverse guidance issued by the state late last month, which advised health care providers that CMS funding for health care facilities is not contingent on COVID vaccinations for staff.

A July 28 memo from DPHHS Director Adam Meier noted that “the current regulations and guidance of CMS and CDC strongly encourage COVID-19 vaccination of all residents and staff, but do not mandate it for any party.”

In response to emailed questions, a CMS spokesperson on Wednesday clarified that the emergency regulation will be issued in September, at which point it will be immediately effective. The regulation won’t apply to other long-term care facilities, the spokesperson wrote.

In a televised address Wednesday, Biden noted that the federal government has recently issued directives requiring federal workers and contractors, Department of Veterans Affairs medical staff and military personnel be vaccinated. More than 130,000 nursing home residents in the U.S. have died after contracting COVID since the beginning of the pandemic, he said.

In 2020, there were nearly 4,000 Montanans living in certified nursing facilities, according to data maintained by the Kaiser Family Foundation.

“With this announcement, I’m using the power of the federal government, as a payer of health care costs, to ensure we reduce those risks to our most vulnerable seniors,” Biden stated. “These steps are all about keeping people safe and out of harm’s way … If you visit, live or work in a nursing home, you should not be at a high risk for contracting COVID from unvaccinated employees.”

Montana’s new vaccine law aims to prevent discrimination against unvaccinated people in Montana by prohibiting government entities and most businesses from requiring that staff, customers or others be vaccinated as a condition of employment or to access the premises. Republicans who supported the bill argued refusing services or employment on the basis of vaccination status is a form of discrimination and a violation of individual freedoms. Republican Gov. Greg Gianforte signed the bill into law in May.

In Montana, COVID-19 vaccination rates among nursing home staff are higher than the statewide population, according to CMS statistics. With 56.7% of those employees vaccinated as of Aug. 1, Montana’s nursing homes lag behind the nationwide rate of 60%.

Elsewhere in the country, low vaccination rates among nursing home staff have been linked to growing numbers of infections and deaths at those facilities.

New COVID-19 cases in Montana have leapt up sharply in the past month, according to data published by the New York Times. The state’s 7-day average for new cases, which accounts for reporting delays and other weekday variations, jumped from just 61 cases per day a month ago to 313 cases as of Tuesday.

The rate of hospitalizations has similarly shot up during the past month, and intensive care units recently reached occupancy rates not seen since December.

DPHHS reported Monday that 85% of patients hospitalized in the past week weren’t vaccinated. Of the state’s eligible population, 49% of Montanans are fully vaccinated, according to DPHHS.

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