Photograph of Angela Rinehart. Angela is an attorney in the Health Care Law Practice Group working on medical services in correctional facilities with Katz Korin Cunningham in Indianapolis.

Supreme Court leans toward making healthcare workers choose: Be vaxxed or axed

01.10.2022

The U.S. Supreme Court on Friday appeared to show a willingness to back the federal government’s desire to require most healthcare workers to be vaccinated against COVID-19.

Legal experts also said, however, that the justices seemed less inclined to be in favor of a mandate that would cover workers at the nation’s larger employers.

The Court heard nearly four hours of arguments in cases pitting the Centers for Medicare & Medicaid Services and the Occupational Safety and Health Administration against more than two dozen states and several business coalitions who claim two separate vaccination are government overreach. At issue in the special hearing was whether the Court should allow the rules, which cover more than 100 million workers, to go into effect as lower courts continue to weigh their merits.

A decision in either case could be issued as early as Monday, with attorneys for the government and the plaintiffs expressing urgency as enforcement measures are set to go into effect for some provisions starting Monday for OSHA and at month’s end for CMS.

“There are clearly three votes in support of the OSHA rule and a lot of concern otherwise,” said Mark E. Reagan, managing shareholder for Hooper, Lundy & Bookman, PC, who primarily represents trade associations and providers in the post-acute and long-term care profession. “It appears that the Chief Justice may be more supportive of the authority of the Secretary (of Health and Human Service) as to the CMS rule (and) ends up potentially aligned with (liberal justices) Stephen Breyer, Elena Kagan and Sonia Sotomayor, who are clearly in support of the CMS rule.”

Reagan noted that Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh all also raised the concerns about whether the states — or most of them except for Alabama, Louisiana and Montana — lack standing to bring the action against the CMS mandate on behalf of affected citizens.

Several times during a question period, justices made the point that it wasn’t healthcare providers themselves fighting the court battle against the CMS rule.

“Where are the regulated parties complaining about the regulation?” Kavanaugh asked.

Still, Justice Neil Gorsuch expressed concern that the rule could violate terms that limit Medicare and Medicaid conditions of participation right to limit “employee tenure.” The CMS rule could trigger the termination of employees who refuse vaccination and are not eligible for a religious or medical exemption.

One of the states’ main arguments in asking the court to at least temporarily block the OSHA and CMS mandates is that workers would leave en masse, possibly even before enforcement begins.

Cases likely to split?

Chris Puri, a long-term care attorney with Bradley Arant Boult Cummings LLP who also represents the Tennessee Health Care Association, told McKnight’s the CMS rule seems “much more likely” to be allowed to proceed.

Even conservative justices joined in voicing questions relating to the government’s ability to decide how its own money should be spent, Puri and Reagan noted – an argument on merit that the Court returned to several times.

Chris Puri

For now, however, the court must only decide whether to lift an injunction that is blocking the rule from taking effect in 25 states.

“The court has a number of tests, such as likelihood of success on the merits,” Puri explained. “But another is irreparable harm. For the court to take steps before a final decision, one party will (have to prove it will) suffer harm that can’t be put back. The opponents’ argument is inherently hamstrung because it’s based on a predictive fact: How many would leave the job. Ask anybody in healthcare: There will be some people who will quit. But you can’t know how many will quit, or the impact. On the other hand, we do know how many have COVID.”

Sean Marrotta, an appellate and Supreme Court attorney who serves as outside counsel for the American Hospital Association, live-Tweeted during the hearings. Though he expects the Court to eventually block the OSHA rule for being ”too broad,” he sees some of the conservative justices joining with clearly supportive liberal justices in favor of the healthcare worker mandate.

“I am tentatively predicting there are at least five votes to uphold the mandate in full and maybe six votes to uphold it in large portion,” he wrote.

Justice Amy Coney Barrett may be one of those who supports the rule in part. She pointed to statutes that would seem to make such a vaccination rule more fitting to settings ceded with specific tasks. She said one covering long-term care facilities is the government’s strongest because it requires facilities to establish and maintain an infection control program.

“That one gives you a stronger case than ones that don’t mention health and safety at all,” she said.

Settings with similar statutes governing health and safety include hospitals and home health, and all together represent more than 90% of healthcare workers covered by the CMS rule, responded Brian Fletcher, principal deputy solicitor general of the United States.

Puri said the final numbers will likely be determined by how the justices view the federal authority.

“I think at the end of the day like administrative law cases, it’s, ‘Do we defer to the government’s judgment,’ whether Labor or CMS, that this is a reasonable thing to do, to approach the problem,” he said. “I don’t think these cases are as complicated legally as we maybe we might have thought. Just substantial and impactful.”

Timing uncertain

Angela Rinehart

“Employers should certainly keep planning for implementation of the rules,” said Angela Rinehart, an attorney in the healthcare practice group at Indianapolis-based Katz Korin Cunningham. “However, given the enforcement discretion and delayed timeline to get into compliance (for the CMS rule), I also don’t think there is cause for concern there.”

Moving ahead with plans to enforce the measure in states not covered by the current injunctions, CMS last month issued a series of 30-, 60- and 90-day targets for vaccination rates.

Rinehart predicted the justices would issue a brief administrative hold on the OSHA rule, especially given that the justices raised the possibility during lengthy arguments Friday.

“However, the Justices seemed pretty clear as to how they would come down on that case, so perhaps an order could come as soon as … Monday. As to the CMS case, I would say ‘soon’ means within several days. But the Court could also decide to take as long as it needs.”


This article first appeared January 10, 2022 on McKnight's Long-Term Care News. The article appears on their website at https://www.mcknights.com/news...