January 19, 2022

When the founders of this republic wanted to “form a more perfect union,” they dispensed with the fairly feckless Articles of Confederation and instead crafted a document considered by legal and political scholars the world over as unparalleled in its wisdom and framework.  One of the keys to the U.S. Constitution’s success is its incorporation of three co-equal branches of government: legislative, executive and judicial.  One does not hold greater sway over the other.  At least that was the intent.  Over the years, however, some have argued that the courts have the upper hand and, indeed, may have unlimited power.  This is because federal judges and justices are appointed for life and rulings by the U.S. Supreme Court can ultimately decide or even create the law of the land.  It is with this understanding that many held their breath in recent days awaiting rulings on two key cases that came before the high court.  One of them was of particular concern to hospitals.

The Decision Comes Down

Last week, the Supreme Court of the United States (SCOTUS) issued two rulings on the constitutionality of executive orders issued by the Biden Administration that mandated injection of mRNA technology materials (commonly referred to as the COVID vaccine) into certain workers.  While the court banned the Biden mandate relative to companies with 100 or more employees (the “OSHA mandate”), on a 6-to-3 vote, it narrowly approved a mandate applied to those who work in facilities that participate with Medicare and Medicaid (the “hospital mandate”).  The ruling was based on the legal doctrine that the executive branch has control over the administration of these two healthcare insurance programs and thus has the right to issue rules impacting those participating in these programs—including hospitals and their workers.

So, it’s settled.  If a hospital intends to participate with Medicare or Medicaid, they will need to implement the Administration’s instructions concerning the COVID vaccine or face the consequences.  In the section below, we will provide a recapitulation of the key elements of the Biden Administration mandate applicable to healthcare facilities.

Mandate Particulars

According to the language of the original mandate, as found in a November interim final rule (IFR), every staff member—whether clinical or clerical, whether full-time or part-time—must be fully vaccinated.  This includes independent clinicians (e.g., cardiologists, surgeons) who come to the facility to provide services.  Providers of telemedicine who do not enter the hospital are not subject to the mandate. 

Since there was a stay put on the mandate due to lower court rulings, the original deadlines for compliance were necessarily rescinded.  Now that SCOTUS has issued a final ruling, new deadlines have been issued.  According to news sources, healthcare workers covered by the Biden Administration’s vaccine mandate will have until March 15 to be fully vaccinated in the 24 states where the requirement was reinstated by the Supreme Court.  Twenty-five states and Washington, DC, continue to face a February 28 deadline for covered workers to be fully vaccinated, as the mandate had not been blocked in those states before last week’s high court ruling.  Hospital workers in the 24 states where the vaccine mandate was reinstated by last week’s SCOTUS decision must have their first shot by Feb. 14 and the second by March 15.  The deadline everywhere else remains Feb. 28 to be fully vaccinated.

Recall also that the mandate allows for certain exemptions.  The IFR requires facilities to allow for exemptions to the vaccine mandate for staff under two conditions:

• Those with recognized medical conditions for which vaccines are contraindicated [as a reasonable accommodation under the Americans with Disabilities Act (ADA)]; or
• Those whose religious beliefs, observances, or practices (established under Title VII of the Civil Rights Act of 1964) compel them to avoid receiving the COVID injection(s).

A set of FAQs released by the Centers for Medicare and Medicaid Services (CMS) clarifies that “no exemption should be provided to any staff for whom it is not legally required (under the ADA or Title VII of the Civil Rights Act of 1964) or who requests an exemption solely to evade vaccination.”  The FAQs also state that hospitals have flexibility in establishing their own processes for permitting staff to request a religious exemption.  However, CMS requires facilities to document and evaluate such requests “in accordance with applicable federal law and as a part of a facility’s policies and procedures.”  The same flexibility is granted in determining the process for evaluating and granting a medical exemption. 

Facilities must ensure that all documentation confirming recognized clinical contraindications to COVID-19 vaccinations for staff seeking a medical exemption are signed and dated by a licensed practitioner, who is not the individual requesting the exemption and is acting within their respective scope of practice based on applicable state and local laws. This documentation must contain all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications. Additionally, a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements is also expected.  The penalty for non-compliance among hospitals and certain other acute and continuing care providers is termination from participating in the Medicare and Medicaid programs. 

If you have questions about the mandate or would like to reach out to us, please contact us at info@miramedgs.com.