President Biden has dropped the carrot and picked up a stick, ordering healthcare workers (HCWs) — all 17 million — to receive the COVID-19 vaccine, or Medicare money may be withheld from their employers.

This is something of an unfolding situation, as many hospitals have already set deadlines, but CMS said it would issue an interim final rule — including a comment period — as early as Oct. 2. “Facilities across the country should make efforts now to get healthcare staff vaccinated to make sure they are in compliance when the rule takes effect,” CMS stated. “Nursing homes with an overall staff vaccination rate of 75% or lower experience higher rates of preventable COVID infection. In CMS’s review of available data, the agency is seeing lower staff vaccination rates among hospital and end-stage renal disease facilities. To combat this issue, CMS is using its authority to establish vaccine requirements for all [participating] providers and suppliers.”1

Ties to Reimbursement

Biden announced the vaccination requirements on Sept. 9, expanding on his idea of leveraging CMS reimbursements to require all HCWs to take the vaccine. “Already, I’ve announced we’ll be requiring vaccinations for all nursing home workers who treat patients on Medicare and Medicaid because I have that federal authority,” Biden said. “I’m using that same authority to expand that to cover those who work in hospitals, home healthcare facilities, or other medical facilities — a total of 17 million healthcare workers. If you’re seeking care at a health facility, you should be able to know that the people treating you are vaccinated. Simple. Straightforward. Period.”2

Citing the highly transmissible delta variant and continuing nursing home outbreaks, President Biden ordered HHS to mandate COVID-19 vaccinations for long-term care staff on Aug. 18. As a result, CMS already was moving to require all nursing home workers to take the vaccine or risk losing federal funding. After Biden’s announcement of the expanded mandates in healthcare, CMS followed suit, saying that in collaboration with the CDC, “emergency regulations requiring vaccinations for nursing home workers will be expanded to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.”1

Legal Questions

Using the reimbursement powers of CMS to affect and enforce healthcare policy should hold up in court, says Lawrence Gostin, JD, a law professor at Georgetown University. More specifically, the president has the power to use government agencies to enforce vaccine mandates in healthcare and places of work.

“I think he is on strong legal ground there,” Gostin says. “The federal government can set conditions on the receipt of Medicare and Medicaid funding as long as they are reasonable. These mandates are evidence-based and logical because healthcare settings [are treating] some of most vulnerable people in the country. Healthcare workers and establishments have the strongest ethical duty to protect their patients. That is on firm legal ground.”

In another mandate that could face many legal challenges, President Biden ordered the Department of Labor to develop an emergency rule to require all employers with 100 or more employees — an estimated 80 million people — to ensure their workforces are fully vaccinated or show a negative test at least once a week.

“There will be challenges, but again, the president is on strong legal footing,” Gostin says. “He is acting under the Occupational Health and Safety Act, which allows the president to set standards for workplace health and safety. The threat of an infectious disease in the workplace — with a highly infectious variant that could cause hospitalization or death — is at least as hazardous as a workplace injury. We are currently in a public health emergency.”

Countering some circulating disinformation, Gostin clarified that a president does not have the power to simply mandate vaccination for all citizens. Only cities and states can legally require those kinds of mandates.

That said, the Biden administration still has some powers it can deploy for vaccines, including requirements for air travel subject to federal oversight. The federal response is a mix of public health and political consequences, as Biden holds back some actions and pushes forward on others. For example, in the mandate speech, he again urged sports and entertainment venues to require proof of vaccination or a negative test for entry. Even if these venues tried to enforce such measures, the CDC vaccination cards are woefully short of a true national vaccination registry system that cannot be easily gamed, Gostin says. The Biden administration has resisted creating such a system, which could be branded as government overreach by political opponents.

REFERENCES

  1. Centers for Medicare & Medicaid Services. Biden-Harris administration to expand vaccination requirements for health care settings. Sept. 9, 2021.
  2. The White House. Remarks by President Biden on fighting the COVID-19 pandemic. Sept. 9, 2021.