ARTICLE
TO: FHA Member CEOs, CHROs, Government Relation Executives and General Counsel FROM: Mary C. Mayhew, President and CEO, Florida Hospital Association SUBJECT: CMS Vaccine Rule Lawsuit Update DATE: November 23, 2021 Members, As we move into the holiday week, we wanted to timely inform you of some key activities that have taken place at the state and federal levels specifically, as it relates to the CMS vaccine mandate and the conflicting State of Florida exemptions that were passed into law recently. Over the weekend, the federal judge hearing the State of Florida’s lawsuit against the U.S. Department of Health and Human Services (HHS) refused to order a preliminary injunction of the Centers for Medicare and Medicaid Services (CMS) vaccine rule. The Court rejected the state’s request because it did not find an adequate showing that irreparable injury will occur in the absence of a temporary restraining order prior to the effective date of PHASE 1. The Court noted that potential injuries claimed in the state’s complaint were either speculative (lost staff) or could be restored with financial remuneration. The ruling does not dismiss the case outright, and the judge directed HHS to respond in compliance with court rules. To date, no rulings have been made in this, or any other, challenge to CMS’s vaccine rule, as such applicable providers must continue to implement the federal rule. ACHA Secretary Simone Marstiller released a statement today opposing the federal overreach. Given the state’s opposition to the federal rule, it is unclear how the state will perform its role as the contractor for CMS in performing CMS surveys for compliance with conditions of participation. In the meantime, the Florida Department of Health issued three rules to implement the law signed by Governor DeSantis last week that prohibits the termination of employees based on vaccine status and requires certain exemptions if an employer issues a vaccine mandate. Emergency rule 64DER21-17 defines “anticipated pregnancy,” states explicitly that employers “may not inquire into the veracity of an employee’s religious beliefs,” and gives rules for exemptions based on natural immunity, periodic testing, and personal protective equipment (PPE). Members should be mindful that the CMS rule does not permit exemptions based solely on immunity or PPE availability, nor does the CDC recognize pregnancy, or anticipated pregnancy, as a medical contraindication to taking the vaccine. 64DER21-18 provides information related to state employees. 64.D-3.049 removes language from the department’s rule on COVID-19 protocols in schools. View the newly promulgated rules here. Given the conflict between the federal rule and the Florida law, hospitals cannot comply with both the state law and the federal rule. We have consistently stated that hospitals are obligated to comply with CMS in order to preserve access for millions of elderly and vulnerable Floridians who depend on Medicare and Medicaid. Clearly where there is a lack of clarity there is confusion, which is adding to the stress and strain for your staff. We still do not have interpretive guidance from CMS. FHA is continuing to evaluate any potential legal strategies to be considered by the FHA board to insulate hospitals against enforcement action by the state and provide clarity regarding federal preemption. Please let us know if we can provide any additional information or respond to any questions you may have. Sincerely, Mary C. Mayhew President and CEO Florida Hospital Association 207-620-0072 MaryM@fha.org [[UNSUBSCRIBELINK]] from all FHA e-communications. 306 East College Avenue | Tallahassee, FL 32301 | Website
Members,
As we move into the holiday week, we wanted to timely inform you of some key activities that have taken place at the state and federal levels specifically, as it relates to the CMS vaccine mandate and the conflicting State of Florida exemptions that were passed into law recently.
Over the weekend, the federal judge hearing the State of Florida’s lawsuit against the U.S. Department of Health and Human Services (HHS) refused to order a preliminary injunction of the Centers for Medicare and Medicaid Services (CMS) vaccine rule. The Court rejected the state’s request because it did not find an adequate showing that irreparable injury will occur in the absence of a temporary restraining order prior to the effective date of PHASE 1. The Court noted that potential injuries claimed in the state’s complaint were either speculative (lost staff) or could be restored with financial remuneration. The ruling does not dismiss the case outright, and the judge directed HHS to respond in compliance with court rules. To date, no rulings have been made in this, or any other, challenge to CMS’s vaccine rule, as such applicable providers must continue to implement the federal rule. ACHA Secretary Simone Marstiller released a statement today opposing the federal overreach. Given the state’s opposition to the federal rule, it is unclear how the state will perform its role as the contractor for CMS in performing CMS surveys for compliance with conditions of participation.
In the meantime, the Florida Department of Health issued three rules to implement the law signed by Governor DeSantis last week that prohibits the termination of employees based on vaccine status and requires certain exemptions if an employer issues a vaccine mandate.
Emergency rule 64DER21-17 defines “anticipated pregnancy,” states explicitly that employers “may not inquire into the veracity of an employee’s religious beliefs,” and gives rules for exemptions based on natural immunity, periodic testing, and personal protective equipment (PPE). Members should be mindful that the CMS rule does not permit exemptions based solely on immunity or PPE availability, nor does the CDC recognize pregnancy, or anticipated pregnancy, as a medical contraindication to taking the vaccine.
64DER21-18 provides information related to state employees.
64.D-3.049 removes language from the department’s rule on COVID-19 protocols in schools.
View the newly promulgated rules here.
Given the conflict between the federal rule and the Florida law, hospitals cannot comply with both the state law and the federal rule. We have consistently stated that hospitals are obligated to comply with CMS in order to preserve access for millions of elderly and vulnerable Floridians who depend on Medicare and Medicaid. Clearly where there is a lack of clarity there is confusion, which is adding to the stress and strain for your staff. We still do not have interpretive guidance from CMS. FHA is continuing to evaluate any potential legal strategies to be considered by the FHA board to insulate hospitals against enforcement action by the state and provide clarity regarding federal preemption.
Please let us know if we can provide any additional information or respond to any questions you may have.
Sincerely,