By Christine Jordan Sexton
FloridaPolitics.com
January 18, 2022
‘Vaccination requirements are a common feature of the provision of healthcare in America,’ the SCOTUS ruling read.
The U.S. Supreme Court on Thursday blocked enforcement of a vaccine mandate requirement for large employers, handing a win to Gov. Ron DeSantis and other Republicans who had sharply criticized the move by the Joe Biden administration.
But the court at the same time is keeping in place a rule requiring vaccination of health care workers employed at hospitals and providers that rely on federal funding.
That creates an immediate conflict in Florida where the GOP-controlled Legislature in November passed a law pushed by DeSantis to ban vaccine mandates in the state unless employers offered up a broad range of exemptions.
DeSantis on Thursday said his administration would enforce the Florida law, which bans private employers from mandating vaccines without offering employees a number of different opt outs. The law also bans vaccine mandates for public employers. Companies that violate the law face stiff penalties, up to $50,000 per violation for employers with more than 100 employees,
“We’re going to make sure that that is enforced, and we’re going to make sure we’re providing protections for people so that they don’t have their livelihoods ruined by an unconstitutional and really ham-handed federal mandate,” DeSantis said.
But Florida Hospital Association President and CEO Mary Mayhew said the SCOTUS ruling makes clear the Centers for Medicare & Medicaid Services (CMS) can implement and enforce vaccination requirements for nearly all employees at facilities that accept Medicare and Medicaid funds.
“Hospitals are obligated to remain compliant with the programs’ conditions of participation and must comply with this federal vaccine requirement now upheld by the highest court,” said Mayhew, who prior to joining the FHA worked in the DeSantis administration, serving as Secretary of the Agency for Health Care Administration. “Florida’s hospitals are committed to ensuring access to care for millions of elderly Floridians who depend on Medicare.”
Mayhew said hospitals don’t want to be caught in the battle between the DeSantis and Biden administrations and “may still need clarity from the courts regarding federal preemption regarding the Florida state law.”
Christina Pushaw, the press secretary for DeSantis, exulted in the Supreme Court ruling on non-hospital employers, saying on Twitter that it was a “huge win for workers’ rights; huge blow to the tyranny of the administrative state. The regime was wrong. (DeSantis) was right.”
The decision by the court to block the mandate crafted by federal workplace regulators was widely expected, especially after the round of skeptical questions from justices. Biden’s administration sought to require employers with 100 or more employees to ensure their workers get vaccinated or tested.
The court ruled 6-to-3 to block the private employer mandate, while the court was split 5-to-4 over whether to allow the health care worker mandate to remain in place.
That slim majority concluded federal health officials had the power to place the mandate on nurses, doctors and others employed at health care providers that rely on Medicare and Medicaid funds from the federal government.
“Of course the vaccine mandate goes further than what the secretary has done in the past to implement infection control,” wrote the court. “But he has never had to address an infection problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does. And his response is not a surprising one. Vaccination requirements are a common feature of the provision of healthcare in America.”
In a follow up post, Pushaw suggested SCOTUS erred in upholding the CMS mandate. Pushaw wrote on Twitter: “It should be stopped too. I understand the legal framework is different from OSHA, but all regulations should be supported by evidence, and this mandate is not.”
The rulings don’t end the legal battles over either mandate, but instead centered on whether or not the rules could be enforced during ongoing court challenges.
Florida hospitals and nursing homes that buck the federal CMS rule risk losing billions of dollars in federal health care money. They could also be prosecuted by the state Attorney General’s office if they violate the Florida law.
The Agency for Health Care Administration on Jan. 4 sent out a provider alert announcing that it would not survey health care facilities for compliance with the CMS vaccine mandate rule. The alert was issued in response to a Dec. 28 CMS memorandum announcing the agency would enforce the rule requiring vaccination mandates in certain states, including Florida. The memorandum reversed a policy from a previous CMS memorandum issued Dec. 2.
“A health care worker who is terminated by a private employer as a result of a COVID-19 vaccination mandate that violates (Florida law) may file a complaint with the Attorney General’s Office,” AHCA said in the alert.
Leading Age Florida Communications Director Nick Van Der Linden said the association would be reaching out to AHCA to get “clarity.”
In the meantime, Van Der Linden said, Leading Age will continue to work with its member facilities to combat vaccine hesitancy.
“We have conducted hundreds of member calls where we provide the latest information so our members can help educate their residents and staff,” Bahmer said in a statement. “We’ve seen great success with that. Currently, 83% of all staff in our member communities are fully vaccinated. Several of our members already had mandates in place before it was a requirement.”
Florida Health Care Association spokesperson Kristen Knapp said skilled nursing facilities are experiencing a “historic labor crisis” and the SCOTUS ruling could exacerbate the situation. The group represents the majority of the state’s 690 nursing homes.
“We are extremely concerned that the court’s decision to allow the CMS mandate to go forward will cause nursing homes to lose even more staff at a time when we are grappling with significant staffing shortages that are impacting access to care,” she said.
Renzo Downey contributed to this report.
Hmm, guess who is most likely to get sick by not having vaccination mandates.