What Authority does HHS have to Issue Vaccination Mandate? Plenty, 11th Cir. Says

Frank Ferreri

Atlanta, GA (WorkersCompensation.com) – Earlier this week, the State of Florida came up short in its bid before the 11th U.S. Circuit Court of Appeals for an injunction that would prevent the U.S. Department of Health and Human Services from enforcing its mandate requiring facilities that provide care to Medicare and Medicaid patients to make their staff get fully vaccinated against COVID-19.

In rejecting Florida’s challenge, the 11th Circuit majority ruled that HHS had the authority to enact the interim rule. Following are the highlights of the court’s reasoning on why the executive agency could take the steps it did.

  • Congress allowed it. In both the Medicare and Medicaid statutes, Congress authorized the department to set standards to protect the health and safety of patients. “By requiring healthcare workers to become vaccinated against a transmissible and highly deadly disease, [the department] was imposing a ‘requirement[]’ that was ‘necessary in the interest of the health and safety’ of the patients who obtained services at federally funded Medicare and Medicaid facilities,” the majority wrote.
  • HHS was not regulating the practice of medicine. Contrary to one of the state’s arguments, the vaccination mandate does not regulate medical practice, in the court’s eyes. Instead, according to the 11th Circuit majority, through the rule, the department “is simply ‘regulating a federal program by requiring facilities that receive federal funding to develop and implement policies and procedures to ensure the vaccination of covered healthcare workers and staff for the health and safety of patients within those facilities.’”
  • The rule wasn’t a departure from what HHS typically does. The mandate concerns the health and safety of Medicare and Medicaid recipients, according to the court. “As to administration of Medicare and Medicaid, it is the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID-19,” the majority reasoned. “If that happens, more patients will have to be treated by Medicare and Medicaid.” Likewise, the court explained that it was inefficient for healthcare facility employees to miss work due to COVID-19.
  • It doesn’t matter that it hasn’t happened before. A dissenting judge in the case argued that the department never before enforced a vaccination mandate. The majority reasoned that this fact was immaterial. “It’s no surprise that [the department] has never enforced a vaccine mandate because vaccinations for healthcare employees have never been an issue of economic and political significance before now,” the majority noted.
  • Vaccinations aren’t new to healthcare workers. “Indeed, healthcare workers have long been required to obtain inoculations for infectious diseases, such as measles, rubella, mumps, and others … because required vaccination is a common-sense measure designed to prevent healthcare workers, whose job it is to improve patients’ health, from making them sicker,” the majority wrote.

As Jon L. Gelman pointed out on yesterday’s blogwire, the case appears to be headed to the U.S. Supreme Court.