MO loses fight against health care covid vaccine mandate

The U.S. Supreme Court upheld the Biden administration’s COVID-19 vaccine mandate for about 10 million health care workers on Thursday, dealing a defeat to Missouri Attorney General Eric Schmitt who had asked justices to overturn the rule.

The court also blocked a broader vaccination rule for many private employers, which Schmitt, who is running for U.S. Senate, had also joined efforts to overturn.

The health care ruling lifts a lower court’s decision that halted the rule from going into effect as scheduled last month. It is particularly consequential for Missouri, which ranks last in the nation for its rate of vaccinated nursing home workers. It means 34% of those employees will now be required to join their colleagues in getting the shot in order for their agencies to continue receiving federal Medicare and Medicaid dollars.

The decision is also likely to affect two Kansas City health care systems, AdventHealth and HCA Midwest Health, that suspended their employee vaccine mandates in December after the lower court decision. Neither could immediately be reached for comment Thursday afternoon.

Last week, Missouri Deputy Attorney General Jesus Osete argued that the Biden administration did not have the authority to mandate vaccines for hospitals. He also asserted that the directive would exacerbate problems for rural health facilities already short staffed nearly two years into a global pandemic that has pushed hospitals to the brink.

In the majority opinion, the Court ruled the Biden administration’s Department of Health and Human Services was within its authority to issue the rule for hospitals, nursing homes and clinics participating in the Medicare and Medicaid programs.

“One such function—perhaps the most basic, given the Department’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety,” the justices wrote.

They noted Osete, during oral arguments, did not object to the federal government’s right to require other infection control measures in health care facilities, such as hand-washing and sterilization of instruments.

Justice Brett Kavanaugh and Chief Justice John Roberts joined the three liberal members of the bench to allow the mandate to go into effect. During the oral arguments, Kavanaugh said he believed the majority of healthcare facilities appeared to support the vaccine mandate.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.

Homes, hospitals have 90 days to comply

In a statement, Schmitt emphasized the decision in the private employers vaccine case, calling it the Biden administration’s “biggest loss to date.” Schmitt, a Republican, has been campaigning for U.S. Senate heavily on a series of lawsuits against the Biden administration.

“Missouri was the first state to file suit against the OSHA private employer mandate,” he said. “While we’re disappointed in the Supreme Court’s ruling on our lawsuit against the health care worker vaccine mandate, that fight is far from over, and the case is still ongoing.”

The Missouri Chamber of Commerce also cheered that decision, issuing a statement that “employers should continue to have the right to establish vaccine policies for their own businesses.”

The Missouri Health Care Association, which represents nursing homes, had objected strenuously to the vaccine rule for health care workers, arguing it would prompt them to leave an already short-staffed industry in droves.

The association’s executive director, Nikki Strong, said Thursday that though nursing home vaccination rates have “slowly crept up” since last fall to about 66% this month, “we’re kind of in the same boat as we were before.”

“I still think it’s going to have a significant impact” on staffing, she said of the ruling. “I don’t think the vaccine hesitancy across the state, not just in long-term care, has waned.”

According to the American Health Care Association, nursing homes have been hardest hit among health care industries by staff shortages. As of December, nursing homes have lost 234,000 workers nationwide since the beginning of the pandemic.

The rule was originally set to go into effect on Dec. 6, which means homes, hospitals and clinics will now have to comply with the mandate or lose funding. However, the rule gives health care providers 90 days to come into compliance with the mandate.

Schmitt’s office also had relied on statements from a Memphis, Mo. hospital CEO arguing he would lose workers over the mandate. The Missouri Hospital Association told The Star in November that most Missouri health care systems, with hospitals concentrated in urban and suburban areas, had already implemented their own mandates, with very few departures.

As the federal rule goes into effect, Republican state lawmakers are pushing bans on vaccine requirements, both government-issued and those enacted by private employers.

Strong testified Wednesday in the Missouri House against a half-dozen of those bills. She was joined by several business groups that opposed both federal vaccine requirements and laws restricting their ability to decide vaccine rules on their own.

A state law prohibiting a vaccine requirement would put Missouri nursing homes at risk of federal financial penalties if the Biden rule goes into effect, Strong said.

“It’s like a Catch-22,” she said.

The Star’s Lisa Gutierrez contributed reporting.

This story was originally published January 13, 2022 3:22 PM.

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Jeanne Kuang covers Missouri government and politics for The Kansas City Star. She previously covered local and state government at The (Wilmington, Delaware) News Journal and reported on criminal justice issues in Illinois. She graduated from Northwestern University’s Medill School of Journalism.

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