Update on SCOTUS Vaccine Mandate Decisions

Health Law Talk Presented by Chehardy Sherman Williams

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Intro (00:01):
Welcome to Health Law Talk, presented by Chehardy Sherman Williams Health Law. Broken down through expert discussion, real client issues and real life experiences, breaking barriers to understanding complex healthcare issues is our job.

Conrad Meyer (00:26):
And good morning, everyone again. 2022, our first real podcast in 2022. Conrad Meyer here with Roy Bellina, Chris Martin for another episode of Health Law Talk. Good morning, guys. Good

Rory Bellina (00:39):
Morning, everybody. Good

Conrad Meyer (00:40):
Morning. And and again, today, very interesting topics that we have because things are moving at lighting speed in the healthcare world. but we’re back to Covid vaccine mandates. And, and, and specifically the Supreme Court rulings on two different challenges to the Covid vaccine mandates. One was a challenge with respect to the conditions of participation that was issued by cms. And the other one, the I guess the more, I guess well known one because it was all over the news, right? Guys? The the OSHA 100 employee mandate.

Rory Bellina (01:15):
Correct. Correct. So, I think, you know, those were the two that were, that were challenged, I believe the federal mandate, that one is currently being challenged. So we’ll definitely do an update on that as that progresses. I believe it’s been stayed in some states, but let’s jump right in. And I think we could talk first about the CMS mandate, right? And you know, if you’re, if you’re looking at was it upheld or not, this was the one that was upheld. We’re also gonna talk about the OSHA private employer mandate. That one was the one that was essentially struck down. So like a little bit of a background for this one. So this is the one where a few states sued the, you know, they named the president in the lawsuit. Obviously the name State was Missouri and this one, and also Health of Human Services.

This one was all involving cms. And the government’s argument was that they were allowed to make a condition of participation. Health and human services were for their, if you were a participating provider, as a condition of participation, essentially. And there’s much more details to it. But the broad gist is that as that condition, you would have to mandate your employees in the healthcare setting to be vaccinated. And I know on a previous episode, we talked about, well, who’s an employee? Who does it apply to? Who does it not? We won’t have to get into that today, But that was a, a requirement. And kind of the, the, we all always talked about the carrot and the stick. The stick was that we could yank your condition, you could, your participation from CMS and, and those dollars would stop flowing to you.

Conrad Meyer (02:44):
But before we get into that, I mean, I think, you know, for those of you who maybe have not listened to the previous podcast, I think it would be important for us to describe what is a condition of participation, So our listeners will know why that is so important to especially Medicare, Medicaid participating providers.

Rory Bellina (03:02):
Yeah, I mean, I can, I’ll give the, the definition, but then we could kind of jump into what it actually looks like on a day to day basis. But it’s very broad. I mean, Congress authorizes Secretary of Health and Human Services basically they’re allowed to do conditions that would requirements as found necessary in the interest of health and safety of individuals who are furnished services in the institution. So what does that mean?

Conrad Meyer (03:25):
Safety? So, so in other words, you know, in order to be, in order to see Medicare or Medicaid patients, providers have to re have to do certain things. They’re required to do that, to participate in that. Is that it? Correct.

Rory Bellina (03:37):
And we’re always looking at what those conditions of participation are. I know, Chris, you have a, a few in mind and you could describe,

Chris Martin (03:44):
I can Well, I mean, the idea too, just the way I think about it is the federal government says, Look, if we’re gonna be paying for services, we have the right to just like, sort of our taxing authority, we have the right to say, you have to comply with these various requirements in order to get our money. And so that’s the idea behind conditions of participation such as certain fire and safety requirements. certain operating rooms have to be a certain size. so there’s physical requirements, there’s health requirements. And I think the Supreme Court kind of said, this is kind of a no brainer. If hospitals are supposed to keep people healthy and their employees have the opportunity or the prospect of infecting patients because they’re not vaccinated, we have, it’s reasonable to require healthcare workers to be vaccinated.

Rory Bellina (04:49):
And I think in this case, the justification was already there because Congress has already authorized the secretary to impose the conditions. And I’ll again, quote the language that the secretary finds necessary in the interest of health and safety of individuals who are furnished services. So that’s as broad as we want everyone that’s in a, a hospital setting to wear gloves when they treat a patient, you know where head coverings, if they’re in surgery, it can, it, it can get very specific, but it’s just very broad health and safety measures. And o’ Conrad, you’re, you’re familiar with those as well?

Conrad Meyer (05:23):
Yeah. I mean, this is interesting, Tim, because this is a second bite of the apple that has been taken, you know, at targeted at healthcare workers because OSHA issued its first ETS in June of, of last year. And now we’ve got CMS coming in on like, if that doesn’t work well here, we’re gonna make it a condition of participation that you have to have this va this vaccine. Correct. So I mean, I just, it was a double whammy. And, and, and I saw when I read the, the ruling, it was very interesting because it, it all made sense. For example, I know that, that, that, you know my, my significant other, for example, is, is a healthcare worker. So before she can step foot in the hospitals, they have to have, you know, certain vaccines, certain things done and, and otherwise they can’t walk in. So why not have

Rory Bellina (06:08):
Covid? And there’s protocols in place where if she does surgery or touches a patient, absolutely. Those, those steps as well on those universal

Conrad Meyer (06:16):
Precautions, you have certain, you know, and how do you dispose things, how to store things.

Rory Bellina (06:20):
And I think some employees, especially in healthcare setting, might realize, Well, that’s just my hospital making those rules. It’s really not. It’s coming from the top down. Yes. As far as those, and those are conditions of participation. And, and I think that, again, it talks about, so I’m just, I’m reading through the ruling from the Supreme Court and pulling some quotes. You know, one thing, it says, one of the most pertinent parts here is programs that hospitals must implement to govern the surveillance, prevention and control of infectious diseases. Mm-hmm. . So that’s a very broad condition of participation. So surveillance, prevention and control of infectious diseases. So

Conrad Meyer (06:57):
Like a TB test, you have to have your TB test, you have to have your flu vaccine, you know, all those things I know that, that a lot of healthcare workers must have. Correct. So if those are okay, Right. If that’s okay for, for, if it’s okay to mandate those vaccines, then why not covid?

Rory Bellina (07:12):
And I think that’s exactly what the Supreme Court thought. And, and I know we’ve get, we get the question, some employees, you know, question, Why do I have to do this at this, at this level? And again, it it comes from maybe not your hospital system, but it’s coming directly from cms.

Conrad Meyer (07:29):
Interesting. It was, it was really, I mean, I, I gotta tell you I, I, when I was watching the Hear or Listen, not watching, when I was listening to the hearing and I was listening on this particular one with respect to, of the CMS ruling, I kept thinking in my head like, it doesn’t make any sense. Like, in other words, the, the arguments that, that were against it, I felt, I mean, were good arguments, but I didn’t think they held water because, because of the, if, if you can mandate one, why can’t you man, as far as a healthcare worker?

Rory Bellina (07:57):
And that was actually quoted in the, in the Supreme Court decision on this. Really, the question came up when asked that oral argument, whether the secretary could, using the very same statutory authorities at issues here, require hospital employees to wear gloves, sterilize instruments, wash their hands in a certain way, and at certain in intervals, Missouri, which was the, the state essentially, that came forward against this. Right. Right. They answered, yes. They said, Of course they could. So I felt at that point, everyone on the bench probably sat back and thought, Well, there

Conrad Meyer (08:28):
We go. There we

Rory Bellina (08:28):
Go. Here it is. You know, if that’s a yes, how is adding another vaccine to the already litany of requirements and vaccinations that healthcare workers have to get?

Conrad Meyer (08:38):
And you, and you know what the sad thing is? I would’ve, I would’ve felt like a pit in my stomach if I was the lawyer. Right. Challenging this rule, because, you know, you like, Okay, I, I think I just lost,

Chris Martin (08:49):
I, I was, I, I thought substantively uhhuh that this, that, that this was the right result. But I wasn’t sure procedurally that the Supreme Court was gonna allow this to go forward cuz of the notice and comment. The, the, the secretary had avoided the notice and comment theory,

Rory Bellina (09:05):
And that was, that was brought up in the, in the dissent. it wasn’t brought up in the majority of him, but that was brought up in the, in the dissent. And I believe the stent had an issue with how that period was shortened.

Conrad Meyer (09:17):
So, so for the listeners, cuz I mean, we, we understand what that means. So for listeners, notice and comment means that if an agency wants to propose a reg a regulation, like, like for example, a vaccine, and correct me if I’m wrong, guys, if they wanna propose a regulation for a mandate or whatever they want to propose, they have to do a proposed rule, allow a specific amount of time for comment, and then after that they do a final rule where they’ve taken the comments into consideration and responded to each of the comments that were submitted. And then after the final rule is, is, is issued, there’s usually some sort of a final correction or correction period after that. Is that correct?

Rory Bellina (09:51):
Is that the interim final rule? Yes.

Conrad Meyer (09:52):
So if you, if you bypass all of that, Right, which is what happened here, then have you procedurally circumvented due process or I guess whatever

Rory Bellina (10:02):
That, and that was the dissent that was a big part in the dissent on this, on this decision. And it, it, it’s kind of glossed over in the majority opinion. But, but the, the thought was we have to do this and we have to do this fast because in, in any other industry, the healthcare system and setting is the most important thing that gets that, that stays operational. It, you know, this is not, I’m sure the Supreme Court would never say this, but you know, if a, if a retail store had to, had to close because all their employees had covid and, and no one could go in and buy the widget that they sold, probably not detrimental to the country. But if huge hospital systems have to shut down because they have unvaccinated employees who are spreading or showing more severe symptoms, that’s a drain on, on a much larger area and population as a whole. And I think that’s why the majority on in this decision was okay with speeding past all the, the comment periods. Right.

Chris Martin (10:56):
The other argument that, that I don’t think the majority commented too much on was these, this origin, these original lawsuits I think were brought primarily by rural states that have trouble staffing hospitals. Right. And the argument was, if you mandate this, we’re gonna have a bunch of healthcare workers quit and we’re gonna be in the same fix of not having enough people to actually provide services to sick patients. And, and I’m not sure that,

Conrad Meyer (11:27):
Did that happen, I mean, have we seen the

Rory Bellina (11:28):
Fall out? It was brought up. That comment was brought up in the oral a arguments. I remember that they cited some st some statistics on how many people they thought would leave the healthcare workforce if they were forced to be vaccinated. And I believe, I know Justice Breyer was the one who really got deep on this and asked, asked the attorney for Health and Human Services and, and they said that, you know, they had people to replace them or that was, was their position at

Conrad Meyer (11:54):
Least. Mm-hmm. , you know, I’m wondering if we’re gonna start seeing the nurses do what the truckers are doing in Canada right now. And, and, and having massive boycots, you know, across the

Rory Bellina (12:03):
Country. And, and you know, it, it, it’s tough to tell. I I think it’s, so, you know, one thing that that comes into play is being a nurse or healthcare provider or physician, whoever, may you spent your life training for this, you know, time, money, re resources, effort. if this is something you feel strongly about, yes, you’re gonna walk away. But I think in this case, and this was a little bit hinted on in the oral arguments if anyone listened to them, it was a little bit hinted on that, that they don’t think that those people are really gonna want, they think that kind of a bluff almost. That they’re really not gonna walk away. That they’ve dedicated their life to health and public service. And they’ve, they knew getting into this, that they were required to get vaccines. It’s just, so, it’s just some that this is one, a new one that, you know, has been very politicized and they,

Conrad Meyer (12:50):
So when’s a due date for this? So this is, this is upheld. So when, when is this supposed to go in effect? Do we know? Do y’all know?

Chris Martin (12:56):
I think the

Conrad Meyer (12:57):
First, because I don’t know the answer to that. I

Chris Martin (12:58):
Think the first shot has to be done by middle of February. Okay. And the, and the second shot has to be complete by the middle of March.

Conrad Meyer (13:07):
Got it. Okay. Okay.

Chris Martin (13:08):
So they extended the, or they they, they redefine those deadlines in light of this opinion. That’s interesting. And gave the hospitals more time to comply.

Conrad Meyer (13:18):
Well, hopefully we won’t see a, a nursing shortage in the rural areas because I know rural hospitals are desperately needed in terms of access. So hopefully that doesn’t happen.

Rory Bellina (13:28):
Yep. So like, like we said, and now I’m just going through the dissent. Justice Thomas wrote the dissent on this one, and then there’s other dissents written as well. But the majority issue that they had was not really with the actual policy itself. It was more of the procedure, like you mentioned Chris mm-hmm. , which I think that that’s fair. I mean, that’s a way to definitely knock down rules that are made. But, but I mean, you’d have to ask the, ask the justices off the record. You know, did you, did you have an issue with the, the policy or with the procedure? And I think they would probably say we had no issue. I’m speculating we had no issue with the policy. It was right. It was more of the procedure, which is just as, you know, valuable as a position to take.

Conrad Meyer (14:09):
Very interesting ruling. At least, at least it fell in line with a lot of things that I think we would, we would’ve expected. So, you know. Yep.

Rory Bellina (14:18):
Interesting. So this one, like, like Chris said, the first shot, and then that’s fairly approaching and I don’t expect to see much more out of this one Now I think that, you

Conrad Meyer (14:27):
Know, CMS think it’s done, right?

Rory Bellina (14:28):
Yeah. I mean it’s, CMS knows their, their powers. I think hospital systems know their powers and, and, and this one’s done. So

Conrad Meyer (14:35):
I, I just want to know how they’re gonna enforce it or look at, I know, I know hospitals do an at station, meaning they attested all their employees are vaccinated. But what do you do? Do you go and say, show me all your, you go to HR and say, give me every employee record and you go through an audit. I guess mean,

Rory Bellina (14:51):
I think it’s gonna become similar to how hospital systems, I know, you know, both of you are with hospital systems. Yeah. Chris and Conrad. I, I assume it’s going to be, you know, they’ve got software to track this, but okay, Conrad, does he have his vaccination? And they get a report of the employees that do or don’t. And they’re gonna have to track that. Just how they have to track. Did you do your first aid training? Did you get your annual flu vaccine? I think it’s just gonna be, was gonna, one thing added to

Chris Martin (15:18):
It, when, when I was at OXNER and they mandated the flu shot, they actually put a sticker on your id Oh, for the badge on your badge saying you’ve been, you’ve had the flu shot. So you literally would walk around and, you know, either back, you know, you either had it or not, but you could, somebody could actually see

Conrad Meyer (15:38):
Whether they have a sticker that says, I’m got my COVID vaccine or something. I don’t know. You know. Yeah. Well, we have another ruling now we have to go over. I, I mean, I think this is the, the bigger,

Rory Bellina (15:46):
This is the bigger one as far as millions of Americans that are in effect. Oh, yes. So I believe the estimate was 84 million Americans. That’s right. We’re gonna take a pivot now and talk about the OSHA private employer one. So if you’re keeping track, this is the one that was struck down as most recently as last week. The government or OSHA removed it from the federal register. It kind of just went away overnight. But we want to give some information. So Chris, I know you wanna kick us off on that one.

Chris Martin (16:12):
Yes. So you know, this was, this was the osha vaccination mandate that required either all 84 million employees be vaccinated or tested weekly.

Rory Bellina (16:26):
And where face coverings, and there were a lot of other stipulations involved with the, the testing that you would have to, essentially your employer did not have to pay for the weekly testing. They didn’t have to give you time off to go get weekly tested. This one had a big burden involved. And I think the Supreme Court really weighed in on

Chris Martin (16:44):
That and, and implied to only employers that had a hundred or more employee employees in the private sector. And, and you know, the interesting thing about this opinion to me was the word they used, They, they italicized the word occupational safety like five or six times.

Rory Bellina (17:05):
That’s a, that was a big key phrase. And I remember that even came up in the oral arguments and occupational safety.

Chris Martin (17:11):
And, and the distinction they made there is OSHA OSHA’s tasked with ensuring occupational safety, not overall public

Rory Bellina (17:20):
Health. Right. And, and one thing that they did, I know that they even brought up what occupational safeties looks like. So for anyone that’s been regulated by osha, I know that both of you had experiences with at the system, but you know, osha, if you are on a construction site, some examples of occupational safety would be you have to wear harness if you’re above a certain height. You have to wear hard hats you know, work gloves, eye protection if you’re doing certain things. So again, occupational safety. And Chris, what was the, the comment that, that was mentioned in this about bringing this home? There was a big talk about bringing it home Yes. By the Supreme Court Justice. And they went back and forth

Conrad Meyer (18:00):
In the arguments. Cause when I listen to the arguments, this was a big deal

Rory Bellina (18:03):
About bringing home the vaccine, bringing home the hard hat. If y’all wanna elaborate on that,

Conrad Meyer (18:07):

Chris Martin (18:08):
Yeah, it was, it was, the idea was that a va, here’s the quote, A vaccination after all quote cannot be undone at the end of the workday. So you can take the hard hat off, you can take the gloves off, you can take the goggles off. But once you’re vaccinated, it’s, it’s more permanent.

Rory Bellina (18:26):
So the justices in this case made a kind of a hard line and said, You go to work, you might not wanna wear a hard hat, you might not want to wear safety glasses, but you need to do it for, to be safe on your job at work. But then as soon as you leave Right, if you don’t wanna wear a hat anymore, or safety glasses, you could take those off cuz you’re not at work with the vaccine. Once it’s in you, it’s in you.

Conrad Meyer (18:46):
Yeah. I mean it was a, it was a far overreach, you know, by OSHA to do this according to the court. And it, it basically said that in all of its existence, it had only made such a demand like this nine previous times. And of those nine, I think a good majority of them were struck down.

Rory Bellina (19:05):
I think it was, Yes. They had been shown six or seven times.

Conrad Meyer (19:08):
Seven times. And the majority of those were struck only

Chris Martin (19:10):
And only one had been upheld in full.

Conrad Meyer (19:13):
So, So this was even more of a reach to, to, to, And I think the quote, like you said, was occupational why you’re at work. Correct. It’s not a public health agency. It, it’s, it’s not, it’s not, it’s not, it’s job is not to mandate public health. Correct. Correct. And I thought that was a great analysis. and I know a lot of people were upset about that. You know, there were a lot of people who were not happy about the ruling, but I think it was the correct ruling

Rory Bellina (19:39):
And, and towards the end of the majority opinion for this one, Yeah. Supreme Court kind of gave a little nugget or a little token Right. For how OSHA could come back and take another bite at this. If either you wanna talk about that in regards to, you know, they talked about physical spacing and requirements and, and I mean, I am, I read it to read, they said, osha, this isn’t the proper way to do it if you’re concerned about covid.

Conrad Meyer (20:02):
Well, I, I mean, I mean, correct me if I’m wrong. So, and, and I, and I I, Chris, you have it in your hand right there, so correct me if I’m wrong the comment was, it was very broadly written over broad in vague rule. Yes. They, they said they, they discussed, I think specifically, for example, landscapers and landscapers who are not inside or are not in a, in a confined space, you know, does, does it, how, how is that apply to them? Mm-hmm. .

Rory Bellina (20:26):
But if they went to a meeting once ever inside Correct. Then they would fall under

Conrad Meyer (20:31):
This. Right. So, so the way I read it was, is if OSHA came back and suddenly said, Okay, for each individual industry, here’s how we’re going to apply the covid vaccine. That in and of itself might be different.

Rory Bellina (20:47):
That’s right. And I think they also, they mentioned spacing in the oral arguments that came up in it. Yeah. I think it’s, Chris you have the language.

Chris Martin (20:54):
Yeah. I’ll just, I’ll just read it cuz it’s, it’s well, well written and it’s clear. It says, this is not to say that OSHA lacks authority to regulate occupation specific risks. Right. Related to covid 19 where the virus poses a special danger because of the particular features of an employee’s job or workplace. Targeted regulations are plainly permissible. We have no doubt, for example, OSHA could regulate researchers who work with covid 19 viruses, right? Mm-hmm. so too could OSHA regulate risks associated with working in particularly crowded or cramped environments. Right. but, but just but OSHA’s indiscriminate approach fails to account for this crucial distinction between occupational risk and risks more generally. And accordingly the mandate takes on the character of a general public health measure rather than an occupational safety or health standard.

Rory Bellina (21:52):
Right. So some of the commentary that came out after the decision was written, you know, I, I read the commentary based on this as well, and a lot of the commentary was that the government thought that OSHA was the right mechanism to reach the most Americans to get this in place. And the Supreme Court said, Well, that’s correct, but this is too broad. You’re, you’re making, this is nothing to do with occupational hazards.

Conrad Meyer (22:16):
Right. But is it, is it really for most Americans, I mean that exactly what you said, I mean, it it they’re taking on the role of public health. Correct. You know, so are, so I guess the question becomes, are we gonna see a new set of regulations set forth by industry at this point? Do you think, Oh, she’s gonna come back.

Rory Bellina (22:29):
I think that if they were to come back, like Chris mentioned in like the Supreme Court mentioned, in their opinion, it would need to be industry specific. And

Conrad Meyer (22:37):
So narrowly focused,

Rory Bellina (22:38):
Narrowly focused. If you were in a factory of 100 or more people and you are not physically spaced more than six feet. And I, I think if they came back with very strict criteria that gave the industry the option to fix. So let’s, let’s talk about the, the example of, of the factory where everyone’s on an assembly line very close together. Right? I think OSHA can come back and say, it’s an occupational hazard. This is my opinion. It’s an occupational hazard for employees to be this close together on an assembly line if they’re not vaccinated. And if they are, if they’re not vaccinated, if they’re not masked and weekly test. But that gives you the option as the owner of the assembly line to add in partitions to space people out. Is that that, is that practical? Probably not. Right. But I think it gives you the option. In this case, there was no option. It was vaccinate or weekly test and wear a mask. It didn’t give you the option to spread people out or to put up partitions. I think that is what the Supreme Court is saying. Osha, here’s how to go back and do it again. Mm-hmm. , that’s just my opinion. I could be completely wrong.

Chris Martin (23:45):
It what was, what I listened to the oral argument on this and the, I forget which it was BRE or Sadam or, or, or Kagan, they, I think it was, it was one of the two lady justices, they kept saying this is not a mandate.

Rory Bellina (24:00):
They did. They, they, they kept on saying it was not a mandate you can get, you can wear a mask and test weekly. That was their,

Chris Martin (24:06):
They challenge, they kept correcting the lawyers who would say mandate. And she would say, This is not a mandate. You have a choice. You don’t, if you don’t want to get vaccinated, you can get tested every week. That’s not a mandate.

Conrad Meyer (24:16):
Yeah. But they shift the risk on the on the employee. Cuz now the employee’s gonna pay for it and they gotta go every three days. I mean, it’s, it’s totally overburdensome. Totally. Yeah. And, and I’m not gonna get even in, I won’t even get into the science of whether or not masks work. Sure. You know, which we all have our own opinions about that. Sure. And, and plexiglass, you know, six feet apart if that really makes a difference. I mean, you know, and does, does vaccines even prevent you from getting the, the virus? So we can’t get getting there. But, but I agree, you know, that I thought the ruling was the appropriate one because of the broad brush.

Chris Martin (24:47):
Well, in the first paragraph of the, of the pre curiam Yeah. It was, it sort of captured it. It says OSHA has never before imposed such a mandate. I mean, you don’t usually hear the Supreme Courts thing. Words like never not that’s or always not that strong. Then the next sentence I thought was even more interesting nor has Congress.

Conrad Meyer (25:09):

Chris Martin (25:09):
So, so not only you’re given all this power to this regulatory agency that nobody elects, nobody knows, or very few people know. Right. And we haven’t, Congress who’s our elected representatives have never passed such a strenuous over, you know, very broad mandate.

Rory Bellina (25:28):
And those questions did come up in the oral arguments. The more conservative justices that wrote for the majority in this opinion, were asking those questions. When has this been done in the past? Give us examples. It hasn’t. And they went, it hasn’t, Well, they went into the, they had to go into the ones that that were done, but then that failed that we mentioned. I think there were nine six were challenged and I think one was upheld, they had to go into that. So it was interesting. I think that that was a big factor in the majority decision. Those justices are, are more conservative, but they also like to look and see, has this been done before? You know, is there some sort of precedent for the minority in here? They were okay with, with doing something new.

Conrad Meyer (26:08):
So we, so I think, you know, we, we’ve come full circle now on this. I mean, we, we’ve done podcasts on this topic before. Sure. All of us have sat in this room and

Rory Bellina (26:15):
Talked about it and there’s only one left. The federal employee one, the truck driver. One is a lot of people deem it that we’re waiting to see what happens with

Conrad Meyer (26:22):
That. But I guess my question to y’all is, is, is to both of you, is are we gonna see this come back at us? Is Congress gonna say, you know what? Like, like, like, like, like throwing a temper tantrum. You know, I don’t like what they did. So here’s another one. Or here’s other president, You know what, I don’t like this. So here’s another one. He’ll direct an agency to do another one. We are we gonna have this back and forth between the executive brands versus the agency versus the state ags. And we’re back at the Supremes.

Rory Bellina (26:50):
My, we’re gonna shift from Health Fall Talk podcast to nail political talk podcast. Well,

Conrad Meyer (26:55):
It’s very, it’s very applicable. It is, it is very

Rory Bellina (26:58):
Applicable. My personal unofficial opinion is that I, cms we know that’s worth

Conrad Meyer (27:04):
A lot. I like same with mine.

Rory Bellina (27:05):
CMS is done. I don’t think we see OSHA come back. I think that the Biden administration took a loss on this. Right. And midterms are approaching the president’s popularity has gone down. I think that it was, it would be too much collateral damage. I think they’re just gonna lick

Conrad Meyer (27:22):
Their wound,

Rory Bellina (27:22):
Lick their wounds, move on. Hopefully Aron was one of the last big variants. And I I I think they see that people are more voluntarily getting vaccinated. I think that they’re, I don’t, I don’t see the bite administration pushing for another bite at this Apple. That’s my, if I had to bet on it, that would be my,

Chris Martin (27:40):
And, and if you kind of look at the what, so what, how the administration has pivoted after these rulings. They now are releasing 500 million masks. They’re now making it easier to get vaccinated by, by insurance coverage,

Rory Bellina (27:57):
Free at home testing delivered by the post office with the at home test. I agree.

Chris Martin (28:01):
That’s kind of how they changed

Conrad Meyer (28:03):
Their tactic. You know, where those tests are made. Right.

Rory Bellina (28:06):
? Yeah. That’s another podcast.

Conrad Meyer (28:07):
That’s another podcast.

Rory Bellina (28:08):
That’s another podcast.

Conrad Meyer (28:08):
You know,

Rory Bellina (28:09):
You know, But that’s a really good point for us that they’re, that they, the vaccine challenges, let’s, let’s say that they’re done, they’re shifting now to the masking and the testing. That’s a, that’s a good, that’s a good point.

Conrad Meyer (28:21):
So what, I mean, are we gonna somehow maybe, hopefully follow the example of the UK or Denmark and say, you know what, enough of this, enough mandate, enough requirement, let’s just live with it and move on and just, you know, that’s the way it is. Are we, are we almost at that point?

Chris Martin (28:37):
Well, I think it kind of depends on the virus to see. I mean, if hopefully these, if there are other variants, they they become less and less potent and less harmful, less fatal.

Conrad Meyer (28:49):
Are we gonna run outta letters in the alphabet? Well,

Rory Bellina (28:52):
I think we’re slowly getting to your point Conrad, I think we’re slowly getting to that part where I think we’re slowly getting out of it. We’re not getting out of it nearly as fast as anyone wants. you know, whether you like Dr. Fauci or not, his position is that we’re still early into this and that we need to meet more, more hurdles. you know, some people believe that, some people don’t. But I think that, I think politics is gonna play a lot into how quick we get out of this. I think if there’s a big shift in the midterms, I think that’s gonna accelerate us getting outta this faster. Right. And I think after the midterms, which are coming up in this, like now we’re going to politics, which I do love talking about.

Conrad Meyer (29:32):
It’s okay. You know, but, but you understand when you deal with regulation, you also deal with policies. So Correct. You have, you have no choice.

Rory Bellina (29:38):
And after the midterms, that’s right. After the midterms are really, midterms are in November, they’re sworn in in I believe January. Right. That’s kind of when the presidential election cycle’s gonna start kicking off. Right. So I think, I think that’s when, depending on how all of that goes, midterms and who’s gonna run for president.

Conrad Meyer (29:54):
So the interim, no more regulations wait to see the midterms.

Rory Bellina (29:57):
I think the focus right now is gonna be on midterms. I think we’re really going political talk now. I think the focus is gonna be on this, the build back better plan of the infrastructure plan that the president is trying to push forward. I think he’s over policy making personally on the vaccine. I think, like Chris mentioned, really good point that I keep going back to is giving out free tests, giving out masks. we’re kind of seeing it here on a local level in the state of Louisiana. You know, we, we all thought our governor was gonna reimplement a mask mandate in Louisiana, and every week he comes out and just updates everybody and says, you know, please wear one police socialist. But I, I think there’s kind of being a shift of hopefully no more mandates, but we’re gonna just have some personal responsibility now.

Conrad Meyer (30:42):
Well, I think also people are getting numb to it. I think people are like, you know what? We’ve, we’ve kind of had enough. And so

Chris Martin (30:49):
But we’re going on two years.

Conrad Meyer (30:50):
Two years. And so,

Rory Bellina (30:51):
And at this point most people have, if you’ve done your part, if you were gonna get vaccinated, you probably would’ve already done it by out.

Conrad Meyer (30:57):
Right. And look, I’m not bashing the whole politic thing, but I mean, when you go, when you start talking about healthcare regulation, you can’t get away from policy. You can’t. And policy involves politics. Correct. So, you know, you know, I know normally we try to avoid the long drawn out political discussions on the show, but I think in this particular case, because of the re continued recurrence and the importance of the Supreme Court rulings, I think it was, it was necessary. The

Chris Martin (31:21):
Other, you know, the the last thing on, on just on the Supreme Court was to me, I mean, it was very interesting how quickly the Supreme Court acted. They don’t, you know, don’t typically

Conrad Meyer (31:33):
Hear cases that fast

Chris Martin (31:34):
Hear cases. Is that fast? And

Conrad Meyer (31:35):
They, and then the issue, the written ruling, I mean, that was to,

Chris Martin (31:38):
To hear, to hear the argument

Rory Bellina (31:39):
In two weeks or a week and a half now,

Conrad Meyer (31:41):
Not even that, I mean, I’m sure they were writing it right after they left the bench. Yeah.

Rory Bellina (31:44):
It was very fast.

Chris Martin (31:45):
So it was extremely fast.

Rory Bellina (31:46):
Yeah. Wow. I think a lot of it, like I said, I think there’s a bigger political angle in

Conrad Meyer (31:52):
All of this, but you know what, good, good for the Supreme Court for, for, you know, what it, it settled the issue, Chris. Mm-hmm. . Mm-hmm good for the Supreme Court to recognize that we, you know, we have a challenge clear here to, to review. we, this was gonna set the direction of the country and they did it quickly and

Rory Bellina (32:07):
Thoroughly. And, and I know we’re, we’re kind of going backwards now, but what was the vote on the cms? Was it five to four, I believe with, I believe it was five to four with Kavanaugh? Possibly in the majority on this one? Or was it, I don’t remember the Roberts, but it, it was close. It was close.

Conrad Meyer (32:24):
Was it, was it an OSHA six three?

Rory Bellina (32:26):
I think OSHA was 63, right. With the conserv, all the conservative justices voting in favor, but, but I, I believe it was Kavanaugh that voted with the more liberal justices on the, on the CMS mandate, which I thought was, was interesting, but, but at least you know, that’s what they’re there for. And he, he thought that it, it met the requirements. So, and we’re gonna have a new justice this summer, so we’ll, we’ll see

Conrad Meyer (32:49):
What happens. We’re gonna see how that goes down. All right guys, that was a great episode here. we really appreciate everybody listening to the show. that was another episode of the first 22 2022 episode of Health Law Talk with Chehardy Sherman Williams. Please make sure you subscribe to our channel and if you have any comments or feedback, or if you have any topics you want us to discuss, please make sure you drop us an email. We always look forward to comments and, and suggestions. So with that being said, look forward to another podcast coming out soon, Headed Your Way on Health Law Talk.

Intro (33:20):
Thanks for listening to this episode of Health Law Talk, presented by Chehardy Sherman Williams. Please be sure to subscribe to our channel. Make sure to give us that five star rating and share with your friends, Chehardy Sherman Williams is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does this podcast establish an attorney client relationship. Reference to any specific product or entity does not count as an endorsement or recommendation by Shahar Sherman Williams. The views expressed by guests on the show are their own, and their appearance does not imply an endorsement of them or their entity that they represent. Remember, please consult an attorney for your specific legal issues. Use.

Recently, the United States Supreme Court issued rulings on two different cases involving vaccine mandates: the first case involved the Centers for Medicare and Medicaid Services (CMS) which mandated that all healthcare workers be vaccinated as a condition of participation for Medicare enrolled providers. The CMS regulation affects all Medicare providers who render healthcare services to Medicare beneficiaries. The second case involved the more widely known OSHA mandate requiring employers with 100 more employees to have all employees including contractors vaccinated. Both cases were widely scrutinized and challenged throughout the lower-level court systems and eventually made it to the Supreme Court of the United States. Ultimately, the United States Supreme Court upheld the CMS mandate but overturned the OSHA mandate. This episode of health law talk takes a deep dive into the specific rulings and discusses the rationale behind the court’s rulings in overturning the OSHA mandate while upholding the CMS mandate.  

Health Law Talk, presented by Chehardy Sherman Williams, one of the largest full service law firms in the Greater New Orleans area, is a regular podcast focusing on the expansive area of healthcare law. Attorneys Rory Bellina, Conrad Meyer and George Mueller will address various legal issues and current events surrounding healthcare topics. The attorneys are here to answer your legal questions, create a discussion on various healthcare topics, as well as bring in subject matter experts and guests to join the conversation.

We handle everything from regulatory and compliance check-ups to employment matters, Medicare and Medicaid issues to state and federal fraud and abuse regulations. Our healthcare attorneys are always staying up to date on the latest state and federal regulations to ensure that our knowledge is always accurate.

Our team has the expertise to assist you with compliance matters, HIPAA violations, payor contracts and employee negotiations, practice and entity formation, and insurance reimbursement issues, in addition to the full spectrum of other healthcare related issues.

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