The federal government argued CMS has to protect beneficiaries' health, and one way to do that is by restricting payment to providers that meet certain qualifications. Vaccinations should fall under this umbrella, the administration said.
But states challenging the mandate contend CMS doesn't have the authority to make this kind of sweeping requirement by itself. The mandate is currently stayed in 25 states pending appeal. The states, which are predominantly Republican-led, emphasized that the mandate could lead to staffing shortages, especially in rural areas.
Health care facilities that implemented their own vaccine requirements have not seen large exoduses of staff so far.
Roberts also indicated he could be in favor of letting the CMS mandate stand, especially in comparison to other COVID-19 vaccination policies from the federal government. Health care regulators seem to have more of a connection to regulating health threats than labor regulators, for example, he said.
Justice Amy Coney Barrett indicated she thought CMS might have the authority to institute a vaccine mandate in certain facilities, like long-term care, but not others.
CMS' lawyer, Deputy Solicitor General Brian Fletcher, argued the agency can mandate infection control protocols across different care sites. If the court shoots down the mandate, it should still consider allowing the requirement in some care settings, he said.
But that's unlikely, according to A. Kevin Troutman, a partner at Fisher Phillips who's been following the case closely. The pressure to issue a ruling quickly makes it less likely that the court will let the mandate stand in some facility types and not others, but Barrett's question is a valid one, he said.
CMS' mandate ties the vaccination requirement to Medicare and Medicaid funding, which makes up a large percentage of the average health care facility operating budget. Conservative-leaning justices questioned whether CMS is effectively trying to dictate employment decisions with that financial tie. The agency is not allowed to make staffing decisions for health care facilities.
Ultimately, the case will rest on whether the mandate creates an irreparable harm for health care providers and their staff. Justice Brett Kavanaugh pointed out that states brought the mandate to the Supreme Court—not the health care workers being regulated by this mandate.
While not every health care provider agrees with the federal mandate, many trade organizations like the American Medical Association and the Association of American Medical Colleges do support the policy, and individual states and health systems have instituted their own vaccine requirements.
The Supreme Court also heard arguments Friday over OSHA's requirement that employees at companies with 100 or more staff get fully vaccinated against COVID-19 or tested weekly.
Justices seemed less convinced that the agency had the authority to make such a sweeping requirement without express direction from Congress, though the more liberal justices again indicated they felt OSHA was acting in the public interest.
"It seems to me that the government is trying to work across the waterfront, and it's just going agency by agency," Roberts told U.S. Solicitor General Elizabeth Prelogar.
