Beware: The Supremes Allow the Health Worker Jab. Post Hoc and After Shock

Even as the Secretary of Labor (who oversees OSHA) had his wings clipped by the Supreme Court regarding mandatory employee vaccination, the Secretary of Health and Human Services (HHS) was given leave to fly, or rather to mandate vaccination of all staff of programs servicing Medicare and Medicaid enrollees. The number expected to be affected: some 10 million people.
Image courtesy of emsquared on Pixabay

Two dissents were filed. One by Justice Alito, the other by Justice Thomas. Each signed on to the other’s– joined by Justices Gorsuch and Barrett. The HHS rule (addressed by its Center for Medicare and Medicaid or CMS) is very broad. Thomas’s dissent called it an:

“omnibus rule mandating that [CMS] medical facilities nationwide order their employees, volunteers, contractors, and other workers to require a COVID-19 vaccine.”  

The CMS rule covers fifteen types of medical facilities, including “hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities,” outpatient services, including physiotherapy and speech-language pathology services, skilled nursing facilities, other ambulatory facilities, and more. The rule could hardly have been more sweeping. Unlike the OSHA rule, which provided an alternative to vaccination by masking and testing, the HHS rule strictly mandates vaccination. And unlike the OSHA decision, the Court allowed it to stand – at least for now.

“In the Government’s view, CMS is authorized to adopt any “requirements that [CMS] deems necessary to ensure patient health and safety,” including a vaccine mandate applicable to all facility types.”

The majority agreed.

The current decision rejects the stays against implementing the rule issued by the 5th and 8th Circuits. This ruling is an interim decision in that it removes the stays and sends the case back to the Circuits to decide the matter “on the merits.”  But the decision packs a clear message of how the Supreme Court would decide, should the case return to them if the Circuits don’t decide similarly.

The Court grounded its decision on the congressionally-granted authority to the Department of Health and Human Services (delegated to CMS) to ensure that the healthcare providers protect the health and safety of Medicare and Medicaid patients under their care – and that this power includes vaccinating all health worker staff.

"Congress authorized the Secretary to promulgate, …  such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution…. [including] infection prevention and control program[s] designed . . . to help prevent the development and transmission of communicable diseases and infections.”

Finding that unvaccinated staff at these facilities pose a serious threat to the health and safety of the elderly, disabled, or sickly Medicaid and Medicare patients, the Court determined that sufficient data showed that the COVID-19 virus is highly contagious, dangerous, and even deadly to these patients. Without vaccination, the Court found the virus can spread rapidly among healthcare workers and from them to patients. Hence, it reasoned, the rule performs the agency’s mandate by ensuring that providers take steps to avoid transmitting a dangerous virus to their patients. This, they held, “is consistent with the fundamental principle of the medical profession: first, do no harm.” Moreover, they rely on the HHS finding that the “COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.”

The Court also found that the threat doesn’t end with COVID-19 transmission by unvaccinated workers:

In addition to the threat posed by in-facility transmission itself, the Secretary also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo [sic] seeking medically necessary care,” creating a further “ris[k] to patient health and safety.”

The Notice-and-Comment Requirement

The HHS rule is also far more procedurally in-your-face than OSHA’s Emergency Standard provision. The HHS rule was issued as an interim final rule, eliminating the conventional public comment time. Nor was the HHS Secretary required to consult with appropriate state agencies, as might be the normal course of events.

The basis for evading the typical notice-and-comment procedure was the Secretary’s finding of “good cause” that the rule should be made effective immediately – because he claimed further delay (other than the two-month delay in producing the rule in the first place) would endanger patient health and safety.

The Court validated the sentiment, truncating the opportunity for individuals to comment or states to perhaps claim there would be insufficient personnel, such as in rural areas. Thomas' dissent blasted the failure to require notice and comment, claiming that millions of workers would be denied their livelihood by being “coerced to undergo a medical procedure they do not want and cannot undo,” an argument raised and accepted in the OSHA case. The majority simply ignored Thomas’ remarks and his ostensible right-to-work argument.

The Dissents Warrant Examination

Justice Thomas’ dissent reads like a philosophical explanation of statutory provisions, turning on the meaning and placement of general and specific clauses -reminiscent of Maimonides’ rules of biblical construction. Going so far as to spend pages arguing over the definition of what constitutes a hospital, Thomas vainly tries to argue that the authority vested in HHS is purely bureaucratic and administrative. Even if infection rules are included under the aegis of powers delegated to HHS, he claims they pertain to managing the physical environment and not person-to-person transmission.

Arguing the government has not established that HHS is empowered to impose a vaccine mandate (notwithstanding longstanding and customary vaccine requirements for other communicable diseases such as Hepatitis B), Thomas reaches back to a 1933 edition of Black’s Law Dictionary to confine HHS’ role to the practical management of the agency. Thomas’ temerity knows no bounds as he next claims the provision to protect patient health and safety is a

“…catch all provision [which] does not authorize every regulation related to “health and safety,” -- notwithstanding an abundance of “regulations that require “infection and prevention control programs.”

While I find Thomas’ dissent laughable, Justice Alito’s dissent -- which focuses on eviscerating the notice-and-comment provision -- is quite compelling and might bring a ray of sunshine to the Libertarian crowd. As he says, in criticizing denying the opportunity for public comment:

“even if the Federal Government has the authority to require the vaccination of healthcare workers, it did not have the authority to impose that requirement in the way it did...”

Generally, because of the importance of notice-and-comment rulemaking, an agency must show “good cause” if it wishes to skip that process,  which in this case would deny states and others running Medicaid facilities, the opportunity to present evidence refuting or contradicting CMS’s justifications. Further, Alito opines that the CMS-acknowledged “uncertainty” and “rapidly changing nature of the current pandemic” supports the imposition of the notice-and-comment rule.

 “Although this Court has never precisely defined what an agency must do … to demonstrate good cause, federal courts have consistently held that exceptions to notice-and-comment must be “‘narrowly construed and only reluctantly countenanced.”

The CMS responds that “[t]he data showing the vital importance of vaccination” indicate that it “cannot delay taking this action.” Alito rebuts that this isn’t good enough, and the agency must “point to something specific that illustrates a particular harm that will be caused by the delay required for notice and comment,” noting that CMS itself delayed implementation of the rule during the months it took to promulgate it.

The problem with Alito’s argument is that the delay was contributed to by “his side’s” argument that persuasion should drive vaccination – not compulsion. Months went by where this approach was tried- to limited (no?) avail (with some health facilities reporting only a 35% vaccination rate). Only when it became apparent that voluntary persuasion wasn’t working- did the government resort to mandating vaccine coverage.

Alito next bemoans the failure to vest decision-making in elected officials – rather than in rules promulgated by unelected officials. However, he doesn’t address the specialized knowledge and expertise precisely tailored to the unique problems of the current crisis these officials are charged to have. He then thrusts his libertarian lance:

“Congress placed procedural safeguards on executive rulemaking so agencies would consider important aspect[s] of the problem[s] they seek to address before restricting the liberty of the people they regulate.”

Incongruously, at least to me, two conservative justices, the Chief Justice and Justice Kavanaugh, rejected this approach, joined with the liberal branch, and supported the broad vaccine mandate:

“We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

Whether the reasoning of the majority (and CMS) holds water now that the omicron variant is upon us and seems largely resistant to vaccination remains to be seen.

What’s next? (Stay tuned….)


[1] Unless exempt for medical or religious reasons.