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Will Vaccine Mandate for Health Care Workers Be First to Reach the Supreme Court?
Now that a federal appeals court has weighed in, the CMS mandate may reach One First Street.
Earlier this week, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit denied Florida's motion for an injunction against the Biden Administration's interim rule requiring that Medicare and Medicaid providers ensure that all employees receive COVID-19 vaccines. Judges Jill Pryor and Robin Rosenbaum wrote the opinion for the court in Florida v. HHS. Judge Barbara Lagoa dissented.
The panel majority accepted the federal government's argument that the Center for Medicare and Medicaid Services (CMS) has the authority to impose requirements on Medicare and Medicaid providers to ensure that they protect the health and safety of their patients. I described the rule at issue and outlined some of the arguments for such authority in posts here and here. The panel also concluded that CMS had "good cause" to bypass the normal notice-and-comment process and to issue an interim final rule.
Of note, the majority also devoted several pages of its opinion to the question of whether it should hear Florida's request for a preliminary injunction given that a district court in Louisiana issued a nationwide injunction against the rule last week. As I noted in my post on that decision, the nationwide injunction was entered without any meaningful analysis, and referenced authority that did not support the proposition for which it was cited. The weakness of the district court's analysis was one factor the panel majority cited in justifying its consideration of Florida's motion, as there is no guarantee the Louisiana court's injunction will withstand appeal.
Judge Lagoa dissented on the grounds that CMS mandate is exceeds the agency's delegated authority and was arbitrary and capricious. Although Congress has delegated authority to CMS to issue regulations that, among other things, ensure the health and safety of Medicare and Medicaid recipients, she did not believe CMS could justify this rule on those grounds. Among other things, she noted that the CMS rule applies to many health care facility employees who have no patient contact, including administrators and contractors, and therefore the scope of the rule is far broader than would be necessary to protect Medicare and Medicaid recipients. She also faulted the agency's explanations for rejecting less stringent alternatives, such a providing exemptions to those with "natural immunity" or allowing providers to implement testing requirements in lieu of mandating vaccination.
The objections to the CMS rule largely parallel those against the other federal vaccine requirements. Although the CMS rule is, in meaningful ways, more stringent than the OSHA ETS, it also seems to be on stronger ground. Both the statutory and policy arguments for mandating the vaccination of health care workers at Medicare and Medicaid providers are stronger than those for requiring vaccination of workers at all large employers. The CMS rule can be justified as a measure to protect Medicare and Medicaid recipients, which is something CMS clearly has the authority to do. Mandating vaccination or testing of all workers who happen to work at firms with 100 or more folks on the payroll, on the other hand, seems like a more opportunistic effort to increase overall vaccination rates, and less a measure to increase workplace safety, which is all that OSHA has the authority to pursue.
Whether or not it is the most legally vulnerable federal vaccine rule, with this decision from the Eleventh Circuit, the CMS mandate could become the first Biden Administration COVID-19 vaccination rule to reach the Supreme Court (even if, as is possible, Florida first seeks en banc review). While the U.S. Court of Appeals for the Fifth Circuit previously ruled on the OSHA vaccinate-or-test ETS, review of all the challenges to the OSHA requirement have been consolidated in the U.S. Court of Appeals for the Sixth Circuit. This means it will be some time before the OSHA rule is ready to go up, if ever. Under the OSH Act, the ETS is only supposed to be in place for six months, and if OSHA adopts a permanent replacement, that litigation may have to start over at square one. Thus the CMS rule requiring vaccination for health care workers might well be the first Biden Administration vaccine requirement the justices get to consider.
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If the mandate for health care workers is upheld, I predict some hospitals will start refusing Medicare/Medicaid in order to keep their staff.
Maybe. But I've been hearing that hospitals will be dropping out of Medicare for decades, and it has never happened in any meaningful numbers.
It's really hard to drop out of Medicare, given the disproportionate number of hospitalized patients who are Medicare recipients.
Huh.
A quick check found a survey from a few years back. 70% of care providers accept new Medicare patients. 20% will accept Medicare from existing patients, but not take new ones.
Medicaid, on the other hand - 45% will accept new patients, 20% will allow continuing Medicaid patients, and the rest will not take it at all.
Both of these rates are worse than their survey highs (10-15 years ago), but not the lowest. Medicare hasn't changed too much (+-5%) but Medicaid is down significantly.
jdgalt1 : "I predict...."
And I predict those of the pro-covid Right will continue to see an apocalyptic worker's rebellion coming in support of their favorite disease (it being always just around the corner).
Doesn't matter how many of their shrill predictions proved wrong in the past; the next one is just bound to come true!
" If the mandate for health care workers is upheld, I predict some hospitals will start refusing Medicare/Medicaid in order to keep their staff. "
In the can't-keep-up backwaters, perhaps. In modern, educated, successful, reasoning communities, the mandate is more likely to be seen as an opportunity to shed low-quality employees.
Tablet has an interesting piece on the inversion of political left and right from HIV to COVID:
https://www.tabletmag.com/sections/arts-letters/articles/conservatives-new-queers
Which factor will history recognize as the most important and direct precipitate of the 2020s enlargement of the Supreme Court?
__ abortion
__ guns
__ pandemic management
__ voting rights
__ bigotry (racism, gay-bashing, misogyny, xenophobia)
__ special privilege for superstition-based claims
__ partisanship/gridlock/election results
Just a reminder that, despite this ruling, the CMS mandate remains blocked nationwide.
https://www.natlawreview.com/article/second-court-halts-vaccine-mandate-nationwide
1: Judges Jill Pryor and Robin Rosenbaum are Obama appointees. Which means they're dishonest Democrat hacks. Which should have been the first thing mentioned about this decision
2: The objections to the CMS rule largely parallel those against the other federal vaccine requirements.
No, because other vaccines actually work. https://www.zerohedge.com/covid-19/8-dead-80-infected-fully-vaccinated-connecticut-nursing-home
3: Although the CMS rule is, in meaningful ways, more stringent than the OSHA ETS, it also seems to be on stronger ground. Both the statutory and policy arguments for mandating the vaccination of health care workers at Medicare and Medicaid providers are stronger than those for requiring vaccination of workers at all large employers. The CMS rule can be justified as a measure to protect Medicare and Medicaid recipients
When you can produce a graph of State Covid "vaccination" rates vs State Covid infection rates that has an inverse linear relationship, then you can legitimately talk about the mandates protecting patients. Until then, you're either an ignoramus, and idiot, or a liar to be making that claim
Greg continues to beclown himself by not knowing the facts or the law of, well, anything.
David continues to beclown himself, pretending to "respond" to something where he has no actual arguments against it.
If you don't know where to find the data, David, I'll point you to it.
I'm pretty sure you know how to use Open Office / Excel / Google Docs to chart two columns of data.
I made this challenge simple. You don't need to use R to make the graph.
If I'm full of sh!t, then you should have no trouble making the graph and giving us a link.
So, show me up, Make it.
Or are you trying to make the pathetic claim that a "vaccine" that doesn't cut the infection rate is still a "massive public health benefit" such that it justifies firing every person who won't take it?
https://pjmedia.com/news-and-politics/athena-thorne/2021/12/09/who-could-have-seen-this-coming-hospitals-that-laid-off-unvaccinated-staff-now-overwhelmed-n1540329
That "article" claims that UMass Memorial Health "was forced to fire 200 employees." (Note: employees, not necessarily actual health care providers.) UMass Memorial Health has 14,000 employees.
It further claims that Pennsylvania’s Geisinger hospital system "dismissed 153 employees." (Again, note: employees, not necessarily actual health care providers.) The Geisinger hospital system has 26,500 employees.
In other words, they're weeding out a handful of stupid/irresponsible/stupid & irresponsible people.
I note you offer no graph
i note you don't even try to claim that a graph could be made that supports your delusional belief
Bu it's the other people who are "stupid & irresponsible".
Projection is one hell of a drug, David