BREAKING NEWS: Supreme Court Hears Oral Arguments in CMS, OSHA Vaccine Mandate Cases

Jan. 7, 2022
BREAKING NOW: On Friday, the U.S. Supreme Court heard oral arguments in the OSHA and CMS vaccine mandate cases, with potentially different outcomes emerging out of the two different cases

On Friday, Jan. 7, the justices of the U.S. Supreme Court heard oral arguments in two cases involving federal vaccine mandates issued by the Biden administration through two federal agencies—the Centers for Medicare and Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA), both of whose fates will have a major impact on patient care organizations across the U.S. The CMS mandate requires that all those working in patient care organizations that accept Medicare and/or Medicaid reimbursement, become vaccinated against COVID-19; the OSHA mandate requires that employees of any business or work organizations with 100 or more employees, be vaccinated. The CMS mandate directly affects virtually all patient care organizations, of course; but most hospital-based organizations, as well as larger clinics and other patient care organizations, employee more than 100 people, so even the fate of even that mandate concerns healthcare organizations, in that case, as employers. Both mandates have been challenged by a group of Republican attorneys general, and the OSHA mandate has been also been challenged by the National Federal of Independent Business (NFIB).

Initially, both cases appeared on the U.S. Supreme Court’s so-called “shadow docket,” meaning that the nation’s high court could have disposed of them without any oral arguments and without issuing any substantive statements, keeping appellate court rulings in place; but last month, the Supreme Court announced that it would hear oral arguments in the cases, thus moving them to the court’s “merits docket,” its main case docket.

Late on Friday afternoon, CNN’s Tierney Sneed and Ariane de Vogue reported that, “Nearly an hour and a half after it started, the oral arguments in the health care worker mandate case have ended. Principal Deputy Solicitor General Brian H. Fletcher wrapped the hearing with a brief rebuttal that did not attract any additional questions from the justices. The Supreme Court spent about three and half hours total on both cases, in what was a marathon session for a court that rarely hosts oral arguments on Friday. The court appeared ready to reject of one of President Biden’s most aggressive attempts to combat the spread of Covid-19 — a vaccine-or-testing requirement aimed at large businesses,” Sneed and de Vogue wrote.

“But in the separate challenge, some justices seemed more open to a vaccine mandate aimed at certain health care workers,” the CNN reporters wrote. “The court heard arguments for almost four hours. The three liberal justices on the court expressed clear approval for the government’s rules in both areas. The cases come as the number of infections is soaring, and 40 million adults in the US are still declining to get vaccinated. What comes next was only briefly alluded to during Friday’s session. The cases before the Supreme Court are in an emergency posture, meaning that the court is not being asked to do a full review on the merits on each case. Rather, the justices are being asked to temporarily put on hold lower court orders while the cases proceed in those lower courts. For the Occupational Safety and Health Administration's (OSHA) testing-or-vaccine rules, states are asking the court to put on hold an appeals court order that allows the mandate to be implemented, and in the health care worker case, the administration is asking the justices to lift lower court orders freezing the requirement in several states while the lawsuit plays out. On these types of emergency requests, the Supreme Court is not required to issue full opinions. It could simply issue one-line orders, that could come at any time. In contrast, the court typically announces ahead of time when it plans to issue formal opinions — though the court won’t say ahead of time which case it is handing down. So it’s unclear how quickly we will hear from the court, how much explanation it will give for why it’s doing what it is doing, or even if there will be a heads up that the decision is coming.”

Indeed, Sneed and de Vogue wrote, “A partial ruling could come in record-breaking time given the OSHA mandate for businesses takes effect Monday. The one hint we got was from Justice Samuel Alito, who suggested during the OSHA case that the court might need to issue a brief administrative hold halting the rule, which the administration will otherwise begin implementing next week.”

Also on Friday afternoon, the New York Times’s Adam Liptak wrote that “Members of the Supreme Court’s conservative majority seemed skeptical on Friday that the Biden administration has the legal power to mandate that the nation’s large employers require workers to be vaccinated against the coronavirus or to undergo frequent testing. A federal workplace safety law, they indicated during a two-hour argument, did not provide legal authority for the sweeping emergency measure. The court seemed more likely to sustain a separate requirement that health care workers at facilities that receive federal money be vaccinated. That regulation, the subject of a second argument, was in keeping with other kinds of federal oversight and was supported by virtually the entire medical establishment, some justices noted,” Liptak wrote.

While Liptak reported that the conservative justices on the court made clear their skepticism over OSHA’s authority to impose a nationwide vaccine mandate without congressional approval, “The second argument, which started shortly after noon, concerned a measure requiring workers at hospitals and other health care facilities that participate in the Medicare and Medicaid programs to be vaccinated against the coronavirus. The requirement at issue in the case, Biden v. Missouri, No. 21A240, would affect more than 17 million workers, the administration said, and would ‘save hundreds or even thousands of lives each month.’ The case concerns a regulation issued in November requiring health care workers at facilities that receive federal money under the Medicare and Medicaid programs to be vaccinated against the coronavirus unless they qualify for a medical or religious exemption. States led by Republican officials challenged the regulation, obtaining injunctions against it covering about half of the nation. Two federal appeals courts, in New Orleans and St. Louis, refused to stay those injunctions while appeals moved forward.”

As Liptak noted, “A third federal appeals court, in Atlanta, sided with the Biden administration. ‘Health care workers have long been required to obtain inoculations for infectious diseases, such as measles, rubella, mumps and others,’ Judges Robin S. Rosenbaum and Jill A. Pryor wrote for a divided three-judge panel, ‘because required vaccination is a common-sense measure designed to prevent health care workers, whose job it is to improve patients’ health, from making them sicker.’”

In that regard, Liptak wrote, “The Biden administration argued that a federal statute gave it broad authority to impose regulations concerning the health and safety of patients at facilities that receive federal money. The statute gives the secretary of the Department of Health and Human Services the general power to issue regulations to ensure the ‘efficient administration’ of the Medicare and Medicaid programs, and parts of the statute concerning various kinds of facilities generally also authorize the secretary to impose requirement to protect the health and safety of patients. ‘It is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients,’ Ms. Prelogar [U.S. Solicitor General Elizabeth Prelogar] wrote in a Supreme Court brief. In response, lawyers for Missouri and other states wrote that the ‘sweeping and unprecedented vaccine mandate for health care workers threatens to create a crisis in health care facilities in rural America.’”

Meanwhile, CBS’s Melissa Quinn captured a key moment in the arguments over the CMS vaccine mandate, writing that, “After roughly 90 minutes of arguments, some members of the court appeared more open to the Biden administration's arguments for imposing the vaccine rule on health care workers. Kavanaugh said the case presented an ‘unusual administrative law situation’ in which the facilities covered by the rule largely support it. ‘Where are the regulated parties complaining about the regulation?’ he asked Jesus Osete, Missouri's deputy attorney general. ‘There's a missing element here.’ ‘I don't know why a provision addressing an infectious disease of this scope is beyond the secretary's determination that the mandate at issue here is necessary," [Chief Justice John] Roberts told Murrill. Kagan said the ‘principal responsibility’ of Department of Health and Human Services leaders is to protect the health and safety of Medicare and Medicaid recipients, who are among the most vulnerable patient populations. ‘All the secretary is doing here is to say to providers, 'you know what, basically, the only thing you can't do is to kill your patients. So you have to get vaccinated so that you're not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients,'’ she said.”

And, Quinn reported, Justice Sotomayor went on to say that ‘That seems like a pretty basic infection prevention measure: you can't be the carrier of disease.’ Sotomayor questioned why the vaccine requirement for the health care workers would be an issue for the states. ‘This is the federal government paying for services and why doesn't it have a right as the payer for services to specify what services it want to pay for?’ she asked. Brian Fletcher, a Justice Department lawyer, told the justices that COVID-19 poses an "acute threat" in health care settings, and Americans ‘shouldn't be forced to choose between getting medical care and exposing themselves unnecessarily to a virus.’”

Sean Marotta, a partner in the appellate practice group at the Washington, D.C.-based Hogan Lovells law firm, and an outside counsel for the American Hospital Association, live-blogged the proceedings, providing a very detailed account of the highlights of what was said on all sides of both cases. Among his highlights, provided in a tweet thread.  In that tweet thread, he noted that “Barrett's questions seem to suggest that she may think the #OSHA rule is too broad but a more-tailored rule may be okay. Also suggests that (as we talked on the blog) the Court may rule differently on the #OSHA and #CMS mandates…. Fletcher also argues that fact vaccines are permanent isn't a relevant difference.  Vaccines are ubiquitous in healthcare settings and COVID no different.  Appeals to Barrett that all statutes support mandate, but that Court should rule statute by statute if necessary…. Fletcher notes that CMS will exercise discretion on a facility-by-facility level in enforcement.  Will not just terminate a facility struggling in good faith to comply with the mandate.”

The Supreme Court could hand down rulings in both cases as early as early next week. This is a developing story. Healthcare Innovation will update readers as new developments occur.

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