[UPDATED] Supreme Court Upholds CMS Vaccine Mandate, Shoots Down OSHA Rule

The U.S. Supreme Court has upheld the U.S. Centers for Medicare & Medicaid Services’ (CMS) vaccine mandate rule for health care providers. However, the court struck down the Labor Department’s vaccine requirement for companies that employ 100 or more workers.

The court heard oral arguments for and against the hotly contested regulations on Jan. 7 and has now ruled in tandem on a collection of cases that challenged the mandates. The U.S. Occupational Safety & Health Administration (OSHA) and CMS announced the rules in November.

Six of the justices decided that OSHA exceeded its rule-making authority with its vaccine mandate, with three dissenting. Five justices agreed with the Biden Administration that the CMS requirement fell within the scope of powers conferred on the agency by Congress, with four disagreeing.

Advertisement

“Of course the vaccine mandate goes further than what the [Secretary of Health & Human Services] has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before,” the justices wrote in their CMS decision. “In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does.”

The court in its opinion cited other existing federal and regulations that require health care workers to be vaccinated against conditions such as hepatitis B, influenza, and measles, mumps, and rubella.

The CMS rule requires that all health care personnel that enter a care setting or come into contact with patients, families or caregivers be vaccinated for COVID-19. The rule requires 100% compliance, and providers would be subject to monetary penalties, potential denials of payment or, as a last resort, termination of their participation in Medicare or Medicaid. The rule states that hospices must have a contingency plan to address workers who do not become vaccinated as required under the emergency regulation.

Advertisement

The agency recently issued survey guidance outlining enforcement policies and procedures for the agency’s requirement for health care workers to be vaccinated against COVID-19, indicating that staff must receive one dose by Jan. 27 and be fully vaccinated by Feb. 26.

“CMS is already implementing its health care worker vaccination rule in 25 states and territories that were not covered by preliminary injunctions,”  CMS Administrator Chiquita Brooks-LaSure said in a statement. “Today’s decision will enable us to fully implement this rule, and we look forward to working with health care providers and their workers to protect patients. We will continue our extensive outreach and assistance efforts encouraging individuals working in health care to get vaccinated.”

The agency indicated that anything less than 100% staff vaccination would be considered non-compliance. For hospices, potential penalties could include monetary fines, denial or payments or termination of the providers’ participation in Medicare or Medicaid, which CMS said would be a last resort. Health care providers would have an opportunity to take corrective action to ensure compliance prior to such a termination.

The regulation allows for exemptions for health-related or religious reasons. Also exempt are staff who exclusively provide telehealth or telemedicine services and do not have any direct contact with patients, patient families and caregivers, as well as personnel who provide support services for the hospice exclusively outside of care settings and do not have any direct contact with patients or families.

Stakeholders in the hospice space have applauded the decision, citing improved safety for hospice patients, families and employees.

“We supported and continue to support a vaccine mandate because we care about health care providers and the people and communities they serve,” Edo Banach, president and CEO of the National Hospice & Palliative Care Organization, told Hospice News. “Today’s Supreme Court decision recognizes that role and gives health care providers the clarity that they need to assure that their staff members, and the people they care for, are fully vaccinated against COVID-19.”

In estimating potential costs of compliance for providers, CMS presumed that implementation would require labor by a registered nurse and an administrator. The agency estimates that a nurse would spend eight hours on this work at a cost of $632, using the rate of $79-per-hour. For administrators, CMS estimated two hours of work as a total cost of $244, or $122-per-hour. This does not include the costs associated with tracking and documenting employee’s vaccination status.

Despite these rulings, the journey of the two vaccine mandates through the courts may not be over. The OSHA case has been returned to the lower court for further adjudication, and the agency has the option to develop a new, more targeted regulation, Bill Dombi, president of the National Association for Home Care & Hospice, told Hospice News. A new or revised rule would also be subject to potential litigation.

“Both cases return to the lower courts for further adjudication. The [Biden] Administration has further options. We strongly encourage both Congress and the Administration to quickly reach a conclusion so that affected health care businesses can focus on providing care,” said Dombi. “Infection control in patient care and staffing is an essential responsibility in all of health care.”

Companies featured in this article: