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Supreme Court clears CMS vaccine mandate, requiring shots for millions of health care workers

[Editor's note: This blog post updates a story appearing in the Jan. 17 print edition of Part B News written before the Supreme Court ruling.]
The Supreme Court ruled on Jan. 13 to remove a lower court stay on CMS' vaccination mandate, requiring millions of health care workers in facilities receiving federal funds to get vaccinated against COVID-19.

The ruling -- issued simultaneously with one that effectually blocked a separate federal mandate requiring employees of large business to vaccinate their staff -- came on a pair of suits, Biden et alia v. Missouri and Becerra et alia v. Louisiana, that sought to reverse previous court actions blocking the CMS mandate in 25 states. (See Part B News, Dec. 6; subscribers only.)

In its unsigned decision, SCOTUS acknowledge that as Secretary of the U.S. Department of Health and Human Services, Xavier Becerra “ has general statutory authority to promulgate regulations ‘as may be necessary to the efficient administration of the functions with which [he] is charged,’” and “one such function -- perhaps the most basic, given the Department’s core mission -- is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.”

On those grounds, the Court found CMS’ Nov. 5, 2021, final rule implementing the mandate “falls within the authorities that Congress has conferred upon [the Secretary],” and that “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”

“Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control,” the Court further stated. “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.”

Justice Clarence Thomas, joined by three other conservative justices, disputed in his dissent that statute authorized HHS to require staff vaccinations. “If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly,” he wrote. “It did not.”

The CMS rule doesn’t allow for a COVID-test alternative to getting the shots. But it exempts workers who do not interface regularly with patients or with other workers who interface with patients. It also allows exemptions for employees who refuse vaccination for religious or medical disability reasons, though these will presumably be subject to the usual accommodation requirements that will remove these workers from jobs that involve patient contact. (See Part B News, Nov. 22; subscribers only.)
Stay tuned to additional coverage in future issues of Part B News.
Blog Tags: compliance, COVID-19, HHS
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