States Fight CMS over COVID-19 Vaccination Mandate

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States Fight CMS over COVID-19 Vaccination Mandate

Laws and proposed legislation conflict with the healthcare worker shot requirement

BY STEPHEN ABRESCH | FEBRUARY 2022

On February 9, a judge in the US District Court for the Western District of Louisiana told a coalition of 16 states that he does not have the jurisdiction to grant a preliminary injunction against implementation of the Centers for Medicare & Medicaid Services (CMS) healthcare worker COVID-19 vaccination mandate in those states’ jurisdictions. Given that the case is currently on appeal with the US Court of Appeals for the Fifth Circuit, he does not have the jurisdiction to grant relief to the plaintiffs, the judge said. He further explained that if he has jurisdiction over the case in the future, he would grant the plaintiffs’ request.

The coalition of 16 states—Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia and West Virginia—filed a lawsuit in the US District Court for the Western District of Louisiana on February 4 with a request that the judge grant them a preliminary injunction against implementation of the CMS healthcare worker COVID-19 vaccination mandate in their jurisdictions.

The lawsuit questions the legal validity of the mandate, this time focusing its arguments on

  • the continuing need for mandates, arguing that the stated need for the mandate was the impact of the Delta variant, which now having run its course robs the federal government of its original justification;
  • the reduced effectiveness of the available vaccines in preventing infection by the Omicron variant;
  • staffing shortages in healthcare facilities; and
  • supposed violations of the Tenth Amendment, the Spending Clause, the Anti-Commandeering Doctrine and the Nondelegation Doctrine.

The lawsuit also alleges that a memo issued by CMS on January 25 providing guidance to state surveyors and accrediting organization (AO) surveyors constitutes a new, separate vaccination mandate for state employees. The guidance states, “Surveyors who are not fully vaccinated ... should not participate as part of the onsite survey team performing federal oversight of certified providers and suppliers (including accreditation surveys performed under an AO’s deeming authority).”

On February 11, the 16 plaintiff states filed a motion to remand the case back to the US District Court for the Western District of Louisiana.

The lawsuits, legislation and regulatory activities in many states opposing the CMS mandate leave healthcare providers, such as ASCs, in a tenuous position, unable to comply with both federal and state requirements.

Background

In a 5-4 decision on January 13, the US Supreme Court handed down an opinion allowing CMS to move forward with implementation of its mandate while the cases of Biden v. Missouri and Becerra v. Louisiana continue to move through appellate courts. While the court did not rule on the merits of the cases, the majority opinion indicated how the court might rule when ultimately deciding the case. Despite this decision, and the subsequent dismissal of a Texas lawsuit against the mandate, state legislatures have introduced dozens of bills that would directly conflict with the CMS mandate if enacted.

State Laws Enacted

Certain states had already enacted laws designed to prevent the use of such mandates within their jurisdictions before the federal vaccination mandates had been officially released. In 2021, states enacted a range of laws that would have run afoul of the federal mandates. Twenty-three states enacted laws prohibiting private employers and government entities from imposing vaccination mandates, prohibiting requirements to show proof of vaccination or requiring broad exemptions from vaccination requirements. The bulk of these did not conflict with the CMS vaccination mandate, though Florida and Montana laws, and an executive order in Texas, had provisions broad enough to directly conflict with healthcare facilities’ ability to comply with the CMS mandate.

Bills Under Consideration

ASCA has identified 54 bills in 21 states introduced into states’ 2022 legislative sessions for consideration that would conflict with the CMS mandate. The bills under consideration can be broken into a few broad categories. Many, like proposals in Colorado and Oklahoma, conflict with the CMS mandate by requiring exemptions broader than those allowed by CMS, typically stating that previous infection with COVID-19 qualifies an individual for an exemption. Others, like legislation in Mississippi and West Virginia, are more blunt, prohibiting private businesses from imposing or enforcing vaccination mandates, without any carve-outs for healthcare facilities. And still others, like Rhode Island and South Carolina, prohibit businesses from compelling those entering the premises to provide proof of vaccination.

Certain state legislators have decided to take different approaches, such as the legislator in Kansas who introduced a bill that proposes to “nullify” any federal vaccination mandate, or the legislators in Tennessee who introduced companion bills that would essentially turn COVID-19 vaccination status into a protected class under state antidiscrimination laws.

A few state legislators also introduced proposals that would punish entities seeking to comply with a legal federal mandate. For example, proposed legislation in Oklahoma would fine a hospital for firing a health professional after refusing to recognize their exemption request based on medical, religious or philosophical reasons; the CMS mandate only recognizes medical and religious exemptions. Legislation introduced in Iowa would eliminate certificate of need (CON) requirements for new healthcare services at existing facilities, including outpatient surgical facilities, in a county with a hospital that imposes a COVID-19 vaccination mandate on its employees, encouraging competition against those hospitals. While these kinds of bills are not common, their introduction shows a willingness to target healthcare facilities in the battle against federal mandates.

State Regulatory Actions

The conflict between state and federal requirements might become problematic for ASCs during CMS surveys. The day following the release of the US Supreme Court opinion on the CMS mandate, the Agency for Health Care Administration issued a press release notifying healthcare providers in the state that “the Agency continues to follow Florida law and will not survey for compliance with the CMS vaccine mandate rule.” In a February 9 memo, CMS noted that “States that fail to perform survey and certification functions in a manner sufficient to assure the CMS of the full certification of compliance with all Conditions of Participation, Conditions for Coverage, and Requirements for Participation for providers and suppliers, may, among other things, receive a revised Survey and Certification budgetary allocation. The Medicare and Medicaid certification of providers and suppliers in a State whose oversight process is substantially deficient may be jeopardized if CMS cannot ensure that the regulatory minimum health and safety standards have been met.”

Despite being the lone federal mandate allowed to move forward by the US Supreme Court, the CMS vaccination mandate still faces obstacles to its implementation from state lawmakers determined to prevent it from taking effect. As the tug-of-war between the states and CMS continues, it is healthcare providers who are unfairly caught in the middle.

Write Stephen Abresch with any questions.