This past week the White House announced a series of new, aggressive COVID-19 policies. In addition to the new OSHA emergency standard requiring large employers to test or vaccinate their employees, the Biden Administration also announced that it would require Medicare and Medicaid service providers to mandate vaccination of their workers. This too may raise legal issues, but not necessarily the broad constitutional claims identified by some commentators. This post aims to explore some of those issues.
We do not yet have the details of the measure, but here is how the White House described the new policy:
The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. Some facilities and states have begun to adopt hospital staff or health care sector vaccination mandates. This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.
As with the OHSA standard, the details matter, and we will know much more about the legal strengths and weaknesses once we see what CMS actually does and how it justifies its actions. That said, I think we can identify where the primary issues are. (Also, as with my analysis of the OSHA standard, I am focusing on the federal government’s authority, and not on the extent to which there need to be medical or religious exemptions and other individual rights claims that might be made.)
To understand how this new policy may work, it is important to remember that CMS already imposes extensive requirements on hospitals and other health care providers that participate in Medicaid, Medicare and other federal health care programs. These requirements are statutorily authorized and impose a wide range of requirements on facilities—public and private—that want to receive reimbursement from the federal government. Some of these requirements relate directly to the spread of contagious disease, and CMS adopted additional COVID-19 requirements for long-term care facilities earlier this year. Hospitals and other health care providers are also generally expected to comply with industry best practices, which generally encourage the vaccination of health care personnel (see, e.g., here and here).
Even though a new policy will affect state providers, I do not think that these conditions are likely to trigger the sort of spending clause analysis we saw in NFIB v. Sebelius. This is because the conditions at issue here are not imposed on states as states. Rather they are imposed on state entities as service providers. So, just as the federal government may regulate states as employers without raising commandeering concerns (as was upheld in Garcia), the federal government may impose conditions on state receipt of federal money so long as these are general conditions imposed on public and private entities alike, and this is why the raft of conditions already imposed on state health care service providers have not previously been questioned, let alone successfully challenged.
Moreover, insofar as placing conditions on some providers raises federalism concerns, I suspect they would be upheld under Sabri v. United States, in which a unanimous Supreme Court held that the federal government may place reasonable conditions on the receipt of federal funds that are designed to ensure that the funds are not misspent or do not otherwise undermine federal purposes. Under Sabri‘s logic, I doubt courts would question whether the federal government can ensure that recipients of health care funds take measures to ensure their facilities are safe and effectively manage health risks. Put more simply, the federal government does not have to fund health care services that make people sick.
What this means is that any legal vulnerabilities in the CMS rule will likely arise from overbroad requirements or insufficient attention to equivalent (but less intrusive) means of reducing relevant risks. Requiring all program participants to offer vaccines to their employees is easy. Mandating that they terminate employees who fail to get one might be more of a reach.
The purpose of the requirements is to prevent the spread of COVID-19 among health care workers and patients, and requiring workers to be vaccinated is certainly an effective way to reduce the risks posed to unvaccinated recipients of health care services. There will be questions about whether alternative measures can be equally effective, but insofar as the requirements apply to those who are providing services in person, there may not be as many alternative ways to mitigate the risk to an equivalent extent. On the other hand, many health care settings use PPE and other measures to control the risk of disease spread, and some employers or employees may be able to argue that such measures provide equivalent protection. At the very least, I would think CMS would have to address such arguments in putting forth the rule.
What all this means is that I would not expect some broad universal challenge to the new CMS rules. Rather, I would expect to see specific, as-applied challenges filed by individual service providers or their employees making the argument that CMS’s purposes can be adequately achieved with less intrusive or more reasonable restrictions. I would also expect that whether these challenges succeed will depend on whether CMS has considered such possibilities and offered a reasonable explanation for the regulatory choice it made. Outside of claims for religious or medically necessary exemptions (which might trigger greater scrutiny), I would also expect the judicial review of such decisions to be quite deferential.
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