January 18, 2022
*NOT FOR EXTERNAL DISTRIBUTION*
SOURCE: New York Times AUTHOR: Audra D. S. Burch and Reed Abelson
Just days after the Supreme Court’s decision about requiring health care workers to be vaccinated, the nation’s health care systems braced for the possibility of some resistance and more staff shortages — particularly in the states that banned mandates or had none.
The ruling lands not long after the one-year anniversary of widespread vaccine distribution in a country still largely split over how best to protect Americans during a pandemic that has produced multiple surges. In upholding the Biden administration’s requirement for millions of health care workers, the decision could wedge health care workers between opposing state and federal policies.
Local and regional hospitals, as well as multistate hospital chains, have wrestled with the resistance among some nurses and other staff to the Covid vaccines. Many of the larger hospital groups, including the Cleveland Clinic and HCA Healthcare, suspended their own vaccination mandates last month while they awaited the Supreme Court’s decision. And some are still assessing the conflict with murky anti-vaccine requirements imposed in Florida, Texas and some other states.
But the rising infections among staffs in hospitals and nursing homes, among the unvaccinated and the vaccinated, have lent urgency to the mandates even though some hospitals and nursing homes warn of staff defections spurred by enforcing immunization.
Jennifer Bridges, one of the nurses who was fired in late June from Houston Methodist Hospital for not getting the vaccine and now works for a private clinic in that city, said she doesn’t regret her decision. Ms. Bridges said she still considers the vaccine experimental.
“I think your own medical bodily autonomy is very important,” she said. “I don’t think anyone should force you to do something against your will.”
But many medical experts say mandates are effective in persuading more people to become vaccinated, which they say is essential to helping prevent the spread of the virus.
“At a time when we’re closing in on 850,000 Americans having died in the worst global pandemic in a century, and when infections and hospitalizations are continuing to soar, it is the obligation of our public agencies to require and enforce essential public safety measures to protect the lives and health of all American workers,” said Zenei Triunfo-Cortez, president of the union National Nurses United.
While 21 states and the District of Columbia have already mandated vaccines for health care workers, six — Texas, Montana, Arkansas, Indiana, Tennessee and Georgia — implemented bans that prohibited some employers from requiring vaccines. Eighteen states had no requirement for health care workers, while five, including Utah, Arizona and Michigan, exempted health care organizations from bans on vaccine requirements.
The Supreme Court ruling covered two dozen states that had been the subject of federal injunctions that prohibited the Centers for Medicare & Medicaid Services from imposing a mandate. About 10 million workers at approximately 76,000 health care facilities, including hospitals and long-term care facilities, are affected by the requirement.
In Florida, Gov. Ron DeSantis called the new federal policy “insane” at a news conference on Thursday. The state’s Agency for Health Care Administration also indicated it would not survey health care facilities about compliance of the vaccine mandate. On Friday, Mr. DeSantis reiterated his position, posting on Twitter that Florida will reject federal mandates, “which are rooted in political, not medical science.”
Still, federal laws ordinarily displace, or “pre-empt,” contrary state and local ones, and in allowing the mandate for health care workers, the Supreme Court at least implicitly ruled that it overrode state laws banning vaccination requirements at facilities participating in the Medicaid and Medicare programs.
The specter of potentially losing federal funding if they do not comply has already persuaded some hospital chains to require vaccinations for workers who did not qualify for a medical or religious exemption.
“If we do not comply with the CMS mandate, we could compromise our ability to serve our communities and provide care to patients under the Medicare and Medicaid programs,” a spokesman for HCA said in a statement. The system, which employs about 275,000 workers, said more than 90 percent of its workers were vaccinated or had qualified for an exemption.
Federal officials said they would work with hospitals and nursing homes to ensure they can vaccinate their workers, and regulators rarely revoke federal funds. But many argue the threat of losing funding remains. “Why risk losing Medicare, which is your life line?” asked Mark Neuberger, a lawyer with Foley & Lardner who advises health care organizations on employment issues. Other hospital groups, including the Cleveland Clinic, also said they planned to comply. The clinic said about 85 percent of its employees were vaccinated.
But the concern remains, particularly among nursing homes and smaller rural hospitals, that the mandate will exacerbate the existing staffing shortages that have crippled much of the country during this latest surge. And many health care executives fear being caught in the cross hairs between states like Florida or Arkansas, which are adamantly opposed to the requirement, and federal officials who say “all states are expected to comply.”
“Hospitals don’t want to be caught between the federal government and the state government,” said Mary Mayhew, president and chief executive of the Florida Hospital Association. “The Supreme Court ruling makes clear the authority that CMS has to implement and enforce its vaccine mandate.”
Dr. Calvin Blount, who has practiced family medicine for more than 20 years in Destin, Fla., said there are still too many unanswered questions about the long-term impact of the vaccine. Now, he is facing a new federal policy that could undermine his practice. More than half of his approximate 420 patients use Medicare.
“For myself and the majority of my patients, the vaccine is a hell no,” said Dr. Blount, 53. “Quite honestly, I don’t know what is going to happen. We have a federal law that contradicts the state law, and we don’t know which side will prevail. If the federal ruling prevails, my options are to get the vaccination, which I am not going to do, or I will be forced to give up my patients who are on Medicare.”
Despite the court ruling, many nursing homes urged the administration to rethink the requirement and instead allow them the option of testing workers. “When we are in the midst of another Covid surge, caregivers in vaccine hesitant communities may walk off the job because of this policy, further threatening access to care for thousands of our nation’s seniors,” said Mark Parkinson, the chief executive of the American Health Care Association, which represents nursing homes, in a statement.
About 83 percent of nursing home staff members are fully vaccinated, according to federal data, but the highly contagious Omicron variant has sent the number of infections among staff and residents soaring. Nursing home residents are one of the nation’s most vulnerable groups. While deaths remain significantly below their peak before the availability of vaccines, some 645 people died the week ending Jan. 9, among the facilities reporting.
With the recent Covid surges, states were already grappling with vaccine requirements.
Despite the Mississippi attorney general’s decision to join nearly a dozen other states that filed suit against the Biden administration’s vaccine mandate, many hospitals in the state had already instituted vaccination requirements for their workers. At the University of Mississippi Medical Center in Jackson, officials said that just 10 of its 10,000 employees, or .1 percent, had been terminated for refusing to get vaccinated.
But smaller hospitals that have long struggled to retain workers and until now had resisted vaccine requirements for their employees said they worried about the ruling’s impact. Lee Bond, chief executive of the Singing River Health System on the state’s Gulf Coast, said he feared the ruling could lead to the departure of hundreds of workers. “Even the loss of one nurse can have a negative impact on the number of patients for whom we are able to deliver care,” he said.
In Texas, Gov. Greg Abbott signed an executive order banning employers from requiring vaccines last year, and more recently his office sued the Biden administration for requiring Army National Guard members in his state to get the shots.
Although Texas filed its own lawsuit and had gotten a separate injunction, the state hospital association is advising hospitals to follow the federal rules in light of the Supreme Court decision.
In California, vaccination rates have risen considerably since August, when Gov. Gavin Newsom’s administration ordered the state’s two million-plus health care workers to be inoculated by the end of September as a condition of employment.
But that hasn’t been enough to prevent Omicron from hurting staffing levels at health care facilities across the state, where hospitalizations for Covid-19 have been spiking, as has been the case nationwide.
Hoping to keep more hospital workers on the job, California health care officials this week changed state guidelines to temporarily allow asymptomatic health care workers to return to work immediately if they have tested positive for the virus.
“In politics, if someone wins with 60 or 70 percent of the vote, they’ve crushed their opponent,” said state Senator Richard Pan, a Sacramento pediatrician who has led California efforts to tighten vaccine mandates. “But in vaccination, that’s not nearly enough. You have to get to the upper 80s and 90s in percentages to keep people safe, and there just aren’t many ways to get 90-plus percent of people to do anything voluntarily. That’s where mandates come in, and generally they’ve been effective.”