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CMS Vaccine Mandate Passes With Some Resistance

January 19, 2022 by Alexa Hornbeck
Florida Gov. Ron DeSantis addresses a joint session of a legislative session, Jan. 11, 2022, in Tallahassee, Florida. (AP Photo/Phelan M. Ebenhack, File)

WASHINGTON — The Supreme Court recently gave the green light to a national vaccine mandate for 10 million health care workers who serve Medicaid and Medicare recipients. The mandate says, get vaccinated or lose funding from the U.S. Centers for Medicare and Medicaid Services, but some states, such as Florida, are resisting the decision.

“SCOTUS did not deliver a full win. Roberts and Kavanaugh sided with leftist justices to uphold the ‘jab or job’ mandate against health care workers. Florida will continue to stand with our health care workers and reject Faucian mandates,” wrote Florida Gov. Ron DeSantis on his Twitter page following the decision by the Supreme Court. 

DeSantis indicates that Florida’s state law from November 2021 to stop employers from issuing vaccine mandates and seeking to fine those who don’t comply, will override the federal mandate for CMS-funded facilities. However, according to an expert in health policy, this is not legally possible.

“There are no legal arguments that suggest a state can run counter to what the Supreme Court has clearly identified as a legit use of the federal spending power,” said James G. Hodge Jr., professor of law and director at the Center for Public Health Law and Policy at Arizona State University, during a phone call with The Well News.

“What [DeSantis] wants is going to get Florida in hot water. He’s not going up against some federal district court that says, ‘I’m not so sure that CMS’s provisions are accurate.’ This is the Supreme Court. This is now the law of the land. These conditions are required,” continued Hodge.

Following the Supreme Court decision, CMS updated its guidance on Jan. 14 to reflect that health care workers in almost all states should get their first shot of the COVID-19 vaccine by Feb. 14, and their second shot by March 15. 

The CMS guidance did not apply to Texas as of Tuesday, and surveyors in Texas were not recommended to undertake any efforts to implement or enforce the interim final rule. 

“I think CMS’ willingness to withhold its application of its mandate to Texas was a temporary response while the case was in litigation. I think it will be lifted, but do not have confirmation,” said Hodge. 

The CMS rule requires health care workers at an estimated 76,000 CMS-funded health care facilities, including home health care and suppliers, to receive two doses of a COVID-19 vaccine by March 15, get an approved medical or religious exemption, or lose CMS funding.

On Wednesday, the lawsuit filed by Texas was dismissed, allowing for CMS to now enforce the entire country. 

Over the coming months, states like Florida may oppose the federal CMS mandate using medical and religious exemptions, though Hodge said such arguments would face severe legal challenges. 

“Could DeSantis say everyone is entitled to religious exemptions in Florida? [Or] … that everyone is entitled to be an unfit medical candidate for the vaccine?” questioned Hodge.

“Well, it may get you out from under it, but it’s going to be severely challenged. When you see Supreme Court clarity on something like this, at that level, and that quickly, it’s done. CMS implements it and state law gets overwritten by it. If you don’t want the federal funds, then don’t get your health care workers vaccinated,” continued Hodge.

The Florida Department of Health recently updated their website following the Supreme Court’s decision to advise health care workers of the mandate and offer access to exemption forms. 

“Any worker can access the required expansion forms on the Florida Department of Health website. Therefore, there is no reason any Floridian should lose his or her job over a COVID vaccine mandate,” it says on the website. 

Despite the pushback from DeSantis, not all CMS-funded facilities in Florida appear opposed to the vaccine mandate for health care workers. 

Data from health care facilities across the state shows that already 73% of caregivers are fully vaccinated that work in Cleveland Clinic locations and 90% of Lakeside Medical Center’s employees are vaccinated.

At Baptist Health facilities in Florida about 99% of employees were vaccinated as of Nov. 1, 2021.

On Friday, representatives from Baptist Health released a statement that, “[their] vaccine mandate remains paused as [they] assess how the legislation passed by the Florida Legislature in November 2021 will impact federal COVID-19 vaccination requirements for health care workers here in Florida.” 

Representatives from the South Florida Hospital and Healthcare Association also issued a recent statement saying that “while enforcing the CMS mandatory vaccination rule will cause some health care workers to seek alternative employment, recent experience has shown that the loss of employees has been small.”

In nursing homes, vaccination rates for staff were at 75% as of Jan. 2, according to data provided by Kristen Knapp, senior director of strategy and communications for the Florida Health Care Association, in an email to The Well News. 

“While the Agency For Health Care Administration, which regulates nursing homes, has indicated it will not survey for compliance with the rule, federal law supersedes state law. Nursing homes are working toward complying with the CMS rule so they don’t risk losing their Medicaid/Medicare certification,” said Knapp.

Knapp said the main challenge of coming into compliance with the CMS vaccination mandate is that many health care facilities are already experiencing a historic labor crisis.

“In Florida alone we’ve lost more than 10,000 jobs in our profession since the pandemic began. 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,” said Knapp.

Alexa can be reached at alexa@thewellnews.com

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