DHHS Vaccine Mandate Decision

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On Thursday, January 13, 2022, the U.S. Supreme Court issued a stay pausing implementation of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), finding that the challengers to the ETS are likely to prevail. Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh issued the decision to stay the OSHA ETS. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas concurred with their own separate opinion. Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan dissented.   

Also on Thursday, January 13th, the U.S. Supreme Court upheld the Department of Health and Human Services’s (DHHS’s) decision to adopt a rule that requires facilities receiving Medicare and Medicaid funding to ensure that their staffs—unless exempt for medical or religious reasons—are vaccinated against COVID-19. Justices Roberts, Sotomayor, Breyer, Kagan, and Kavanaugh joined in the decision to uphold DHHS’s vaccine mandate. Justices Alito, Gorsuch, Barrett, and Thomas dissented.   

This decision by the Supreme Court will effectively resolve challenges to DHHS’s rule mandating that facilities receiving Medicare and Medicaid funding ensure their staffs are fully vaccinated against COVID-19 unless legally entitled to a medical or religious accommodation.   

In response to the Supreme Court’s decision, the Centers for Medicare and Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure, issued a statement that included the following note:

As a result of today’s decision, health care providers subject to the Omnibus Health Care Staff Vaccination rule in the 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming) covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.

Today’s decision does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted. See the guidance released on December 28, 2021, for additional information.

Accordingly, employers who have staff facilities receiving Medicare and Medicaid funding and who will be subject to DHHS’s vaccine mandate may want to consider preparations to come into compliance with the DHHS mandate.   

The following is a summary of the Supreme Court’s decision.

Summary of Supreme Court Decision

Notably, the Court affirmed DHHS’s vaccine mandate for facilities receiving Medicare and Medicaid funding the same day that the Court stayed OSHA’s large employer ETS, even though DHHS’s vaccine mandate was more restrictive than OSHA’s ETS in that DHHS’s vaccine mandate does not permit employers to adopt a masking/testing regime as an alternative to mandatory vaccinations. Instead, it requires facilities receiving Medicare and Medicaid funding to ensure their staff is fully vaccinated unless exempt for medical or religious reasons.   

In affirming DHHS’s vaccine mandate, a majority of the Court (Justices Roberts, Kagan, Sotomayor, Breyer, and Kavanaugh) concluded that DHHS’s vaccine mandate fit “neatly” within DHHS’s statutory authorization to “impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’” The Court reasoned:

Congress has authorized the Secretary to impose condi­tions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).* COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Hu­man Services determined that a COVID–19 vaccine man­date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accord­ingly concluded that a vaccine mandate is “necessary to pro­mote and protect patient health and safety” in the face of the ongoing pandemic. Id., at 61613.

The rule thus fits neatly within the language of the stat­ute. After all, 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.

The majority decision rejected the dissenters’ argument that the statutory language only authorized DHHS to “impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid,” stating:

But the longstanding practice of Health and Human Ser­vices in implementing the relevant statutory authorities tells a different story. As noted above, healthcare facilities that wish to participate in Medicare and Medicaid have al­ways been obligated to satisfy a host of conditions that ad­dress the safe and effective provision of healthcare, not simply sound accounting…. Moreover, the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves…. And the Secretary has always justified these sorts of re­quirements by citing his authorities to protect patient health and safety.

The majority decision also seemed to take heart from reports that “healthcare workers and public-health organizations overwhelmingly support the Secre­tary’s rule…. Indeed, their support suggests that a vac­cination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized the Secre­tary to impose.”

The majority decision rejected the challenges to DHHS’s analysis of the costs and benefits to the vaccine mandate on the grounds that “the role of courts in reviewing arbitrary and capricious challenges is to ‘simply ensur[e] that the agency has acted within a zone of reasonableness.’”   

Ultimately, the Court concluded that “[t]he challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not con­ferred upon it. At the same time, such unprecedented cir­cumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

Justices Thomas, Alito, Gorsuch, and Barrett dissented from the majority opinion that uphold DHHS’s vaccine mandate. The dissenting justices argued that the applicable statutes did not plainly authorize a vaccine mandate, and thus imposing one was outside the authority of DHHS:

Yet here, the Government pro­poses to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures. The Government has not explained why Congress would have used these ancillary provisions to house what can only be characterized as a “fundamental detail” of the statutory scheme. Had Con­gress wanted to grant CMS power to impose a vaccine man­date across all facility types, it would have done what it has done elsewhere—specifically authorize one.

Instead, the dissenting judges viewed DHHS’s authorizing statutes as permitting DHHS to “only administrative requirements like those that precede it…. A re­quirement that all healthcare workers be vaccinated is plainly different in kind.” The dissenting justices concluded that they “expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance” and that “[i]f 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. It did not.”   

The dissenting justices concluded with an argument that Congress must clearly give agencies statutory authority to implement wide-ranging mandates such as a vaccine mandate:

These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Govern­ment has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.

This decision by the Supreme Court will effectively resolve challenges to DHHS’s rule mandating that facilities receiving Medicare and Medicaid funding ensure their staffs are fully vaccinated against COVID-19 unless legally entitled to a medical or religious accommodation.   

As such, employers who have staff facilities receiving Medicare and Medicaid funding and who will be subject to DHHS’s vaccine mandate may want to consider preparations to come into compliance with the DHHS mandate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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