Florida Hospitals Face Dueling Vaccine Mandate Rules

As the pandemic lingers, Florida hospitals have more than sick patients on their hands.

Hospitals have been working to comply with an emergency regulation from CMS, requiring COVID-19 vaccinations for staff at healthcare facilities that participate in Medicare and Medicaid programs.

But now, they have been left scrambling over a new and contradictory state law.

CMS published its regulation on November 4, and 2 weeks later, Gov. Ron DeSantis (R) signed legislation that prohibits COVID-19 vaccine mandates in the Sunshine State.

“Our hospitals are expressing concern and angst about the situation they find themselves in — caught between conflicting federal and state policies,” Mary Mayhew, president and CEO of the Florida Hospital Association (FHA), told MedPage Today. “And where there is clearly a lack of clarity, there is confusion.”

“Meanwhile, our hospitals are trying to effectively communicate with their staff, who are already stressed and strained,” Mayhew added. “This confusion is just exacerbating that.”

Hospitals are obligated to comply with the CMS regulation, so that they are able to provide access to care for millions of elderly and vulnerable individuals, Mayhew said. Hospitals also want to avoid any enforcement action and financial penalties from the state.

There is concern about staffing when it comes to compliance with the federal rule, Mayhew said, as hospitals are experiencing “one of the worst workforce shortages … in a very long time.” (A report commissioned by the FHA and the Safety Net Hospital Alliance of Florida, released in September, found that the state will face a shortfall of 59,100 nurses by 2035.)

With many moving parts, including the new state law and legal challenges to the federal regulation, Mayhew said she’s certain there are hospitals having to adjust their policies.

Such has been the case at Ascension Florida and Gulf Coast, which local station WJAX reported has been bringing back previously suspended staff.

Other health systems in Florida detailed ongoing efforts to navigate differing requirements at the federal and state level.

“Prior to the CMS action creating a mandate, HCA Healthcare had encouraged our colleagues to get vaccinated against COVID-19 and made vaccines readily available, but we had not mandated vaccination,” a spokesperson for HCA said in a statement provided to MedPage Today in an email. “Even though several states in which we operate have taken legislative action to limit vaccine mandates, we are required to comply with the recently issued federal health care regulations through CMS and will require vaccination for our colleagues who are covered by the CMS mandate, unless they qualify for a medical or religious exemption.”

“More than 3 out of 4 of our colleagues are included in this category,” the spokesperson said. “If we do not comply with the CMS mandate, we will lose our ability to care for Medicare and Medicaid patients in the communities we serve.”

The spokesperson added that HCA has plans in place “gained from our operations in states that have already mandated vaccination.”

Sarasota Memorial Health Care System has notified employees and medical staff that it is “updating its COVID-19 vaccination policy to ensure compliance with the federal vaccine mandate and CMS rules,” a spokesperson said in an emailed statement.

“Under the new policy, all employees, members of the medical staff and volunteers of Sarasota Memorial Hospital-Sarasota, Sarasota Memorial Hospital-Venice, and any Sarasota Memorial outpatient facility must be fully vaccinated with either the two-dose COVID-19 vaccine (Moderna or Pfizer) or the single dose of the COVID-19 vaccine (Johnson & Johnson) by Jan. 4, 2022, unless they qualify for a medical or religious exemption provided by the federal mandate,” the spokesperson said.

The spokesperson said that vendors and contracted employees also will be required to comply with the federal mandate. Individuals with approved exemptions will need to undergo COVID-19 testing twice a week and wear masks.

“Since the vaccine became available nearly a year ago, Sarasota Memorial has worked hard to encourage every team member to get the shot, but we have not mandated it,” the spokesperson added. To date, 82 percent of the nearly 7,800-member workforce has been vaccinated.

At University of Florida Health, a spokesperson said the following in an email: “As a health care system, we are continuing to follow the federal COVID-19 vaccination mandate to ensure continued compliance. This includes having a process in place for employees to avail themselves of medical or religious exemptions.”

Though a federal judge recently denied the state of Florida’s motion for a temporary restraining order or preliminary injunction against the CMS regulation requiring COVID-19 vaccinations for health care workers, the case is not over, and other challenges to the rule are expected to play out in the legal system.

“While CMS cannot comment on pending litigation, the vaccine requirement for health care workers addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system to strengthen the health of people and the providers who care for them,” a spokesperson for the agency said in a statement provided to MedPage Today in an email. “CMS knows that everyone working in health care wants to do what is best for their patients to keep them safe.

“Health care workers have a special ethical and professional duty to protect their patients,” the spokesperson added. “There is no question that staff in any health care setting who remain unvaccinated pose both direct and indirect threats to patient safety and population health. That is why it is imperative for health care providers to ensure their staff who may interact with patients are vaccinated against COVID-19.”

The office of Gov. DeSantis did not immediately respond to a request for comment.

As the dueling requirements continue, the FHA has not taken a position on which one – federal or state – is best, according to Mayhew. However, leadership plans to keep a close eye on how a number of lawsuits unfold and what the outcomes may mean for hospitals.

In the short-term, hospitals need clarity regarding federal preemption, Mayhew said.

The FHA has been consistent in acknowledging the importance of the COVID-19 vaccine in preventing and reducing infection, and saving lives, Mayhew said. She added that hospitals have done a “phenomenal job” in preventing exposure and transmission, including before the vaccine was available.