Supreme Court hears emergency arguments on CMS, OSHA vaccine requirements

Supreme Court justices hearing emergency arguments about an injunction stopping enforcement of a CMS interim final rule requiring hospital and other healthcare workers to be vaccinated against COVID-19 seemed to lean toward the side of CMS on Friday.

However, justices appeared sharply divided over whether to let an OSHA emergency temporary standard (ETS) requiring employers with 100 or more employees to either require vaccinations or mandatory testing and masking in the workplace.

The justices are expected to decide quickly on whether to allow the lower court rulings that put a stop to enforcement of the vaccine requirements stand while lawsuits wind their way through trial.

But in the case of the CMS interim rule, that only applies to only those states affected by the lower court rulings: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

All other states and U.S. territories covered under the rule must move forward with implementation of the CMS requirements.

Missouri Deputy Attorney General Jesus A. Osete, one of two lawyers arguing for states suing to stop the CMS vaccine requirements, told justices that the CMS rule could lead to staff shortages. That, he said, would be devastating for critical access hospitals in rural areas and could force residents to seek medical care hours away if a hospital was denied Medicare funds and shut down by the requirement.

U.S. Principal Deputy Solicitor General Brian Fletcher responded that CMS always has discretion when considering whether a facility has been violating CMS Conditions of Participation to the point that it should be denied Medicare funds, and that would include whether a community would be severely impacted.

As it stands, Fletcher noted that CMS has stated that it expects hospitals and other facilities with healthcare workers who face potential exposure to COVID-19 to have at least one dose of vaccine within 30 days of a December 28 memo to surveyors, or as of January 27, and to be fully vaccinated 60 days after that.

However, the memo, QSO-22-07-ALL, also notes that CMS will be flexible on enforcement, for a time.

For instance, hospitals that have substantial plans in place to meet the deadlines or show that staff have been granted qualifying exemptions from receiving the vaccine, may be allowed to work through a plan of correction.

Justices who questioned the necessity of the OSHA requirements were less skeptical of the CMS rule. For instance, Justice Brett Kavanaugh noted that those most impacted by the CMS rule, hospitals and other healthcare providers, were largely in favor of the mandate.

As for the OSHA stay, the justices were more divided, particularly over whether OSHA could demand an employer implement an action such as a vaccine that also impacted the employee when not at work.

Justices also asked why OSHA couldn’t just go through the standard process of a proposing a rule and gathering comment before implementing a final rule or standard.

By statute, OSHA had six months to go through a more formal rulemaking process for both the vaccine-or-testing mandate and an earlier ETS  focusing on respiratory and PPE protections. OSHA withdrew much of that rule recently, except for the COVID-19 fatality and hospitalizations reporting requirements, because the agency did not expect to be able to meet the six-month deadline.

However, OSHA and compliance experts said the substance of that emergency standard is expected to be enforced through existing standards.

For a look at how the CMS rule is expected to be implemented by surveyors at hospitals, go to https://www.cms.gov/files/document/qso-22-07-all-attachment-d-hospital.pdf.