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Health Workers Jabs Revved to ‘Full Speed Ahead’ by High Court

Jan. 14, 2022, 9:45 AM

Health-care facilities across the U.S. must once again work toward complying with a Biden administration vaccine mandate, attorneys who advise hospitals and other medical providers said in the wake of the Supreme Court’s decision to allow the requirement to move forward.

Lower courts had blocked the Centers for Medicare & Medicaid Services from enforcing the mandate in 25 states, causing many health facilities to take a wait-and-see approach to requiring their employees to be fully vaccinated.

With the court’s 5-4 decision on Thursday, health-care providers should be “full speed ahead” in their efforts to comply with the requirement, said Frank Morris Jr., a member of Epstein Becker & Green.

The CMS rule covers more than 17 million workers at about 76,000 health-care facilities participating in Medicare and Medicaid across the U.S., including hospitals and long-term care facilities.

The justices heard oral arguments Jan. 7 on the Biden administration’s request that the court lift two lower court injunctions.

The court on Thursday blocked a separate administration rule that would have required large employers to mandate vaccination or regular testing for their workers.

Tight Deadline?

Health-care providers may have a short time frame to take action.

The deadline for workers at facilities in states unaffected by the lower court injunctions to get their first dose of a Covid-19 vaccine is Jan. 27, according to the CMS. The agency has not said whether it will offer an alternative deadline for the states involved in the litigation that reached the high court.

“Health-care providers are grappling with nationwide staffing shortages, ongoing supply chain disruptions, surges in Omicron variant cases, and a shifting regulatory landscape,” said Samantha Gross, associate at Saul Ewing Arnstein & Lehr LLP. “Needless to say, this will create yet another challenge for our nation’s health-care providers.”

However, health-care facilities have known that a vaccine mandate would be a possibility since November, so most should be well prepared to meet whatever deadline the agency sets, said Yvette Gatling, shareholder at Littler Mendelson PC.

The CMS has said all along its goal is to get employers to comply with the mandate, rather than impose harsh penalties. “Given the complex legal challenges raised, CMS will likely give additional time for enforcement so long as covered employers can demonstrate that they are taking all steps toward compliance in good faith,” said Kristin Ahr, a partner at Nelson Mullins Riley & Scarborough LLP.

Greater Certainty But ...

The decision from the Supreme Court appears to give health-care providers greater certainty after months of litigation.

“We appreciate the sense of predictability that is now established,” said Jared Kosin, president and CEO of the Alaska State Hospital and Nursing Home Association.

However, a handful of state laws prohibit vaccine mandates or require broader religious or medical exemptions than the CMS rule provides. These laws clash with the federal rule and made the decision to require vaccination even more complicated for health-care providers as they awaited Supreme Court guidance.

The Supremacy Clause of the U.S. Constitution means that the CMS rule “pre-empts any state law to the contrary,” the CMS said when it issued the requirement on Nov. 5.

“It will need to be decided in court,” Mary Mayhew, president and CEO of the Florida Hospital Association, said of the clashing requirements. For now, they “put hospitals absolutely in the middle.”

Debate Over Mandates

Health-care facility leaders disagree on whether a vaccine requirement is the best way to increase vaccination rates among staff. Mandates may cause resistance in a way that education does not, some said.

The lawsuits filed against the CMS said a vaccine mandate would exacerbate the very staffing shortages it is trying to quell.

“I remain steadfast in my belief that healthcare decisions should be made by individuals, not dictated by bureaucrats intent on forcing medical procedures on people who do not want or need them,” Louisiana Attorney General Jeff Landry, a plaintiff in one of the lawsuits against the mandate, said in a statement after the high court decision.

But for many industry leaders, the necessity of boosting staff vaccination rates is clear.

“The Covid-19 vaccines have been a ray of light because they greatly decrease the chances of contracting Covid-19, becoming severely sick, being hospitalized, or dying,” American Hospital Association President and CEO Rick Pollack said in a statement. “That is why the AHA has consistently urged all health care workers to be vaccinated.”

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com