If Gov. Ron DeSantis and President Joe Biden each get their way, Florida hospitals and nursing homes will be penalized no matter what they do.
Next week, lawmakers in Tallahassee will take up legislation backed by DeSantis that would restrict a business’s ability to mandate COVID-19 vaccines for its employees. Under the proposed bills, every time a small business fires an employee for being unvaccinated without first providing a number of vaccination exemptions, the business would be subject to a $10,000 fine. For businesses of 100 or more employees, the fine would be $50,000 per violation.
Meanwhile, the federal government is poised to require hundreds of those same businesses to mandate vaccinations for employees in a way that conflicts with the Florida legislation. A rule issued last week by the federal government requires Medicare and Medicaid-certified facilities to mandate vaccination for workers. Employees at hospitals, nursing homes, hospices, and other health-care companies regulated by the federal government are to get their first vaccine dose by Dec. 6. They are to become fully vaccinated by Jan. 4, 2022, according to the rule.
If a facility refuses to require vaccination, it could risk losing Medicare or Medicaid funding — crucial lifelines for any health-care company.
“You don’t want to have a conflict between state and federal law, certainly as a Medicare or Medicaid provider,” said Justin Senior, CEO of the Safety Net Hospital Alliance of Florida. “We don’t want to get caught in any crossfire.”
There is still time for state lawmakers to change their minds about penalizing facilities that are trying to comply with the Biden administration’s rules. Starting Monday, the House and Senate bills will make their way through the truncated legislative process of a week-long special session. Lawmakers will have the chance to suggest amendments before the bills are potentially passed and signed into law by the governor.
But as the bills stand today, they offer no leeway for the Florida businesses subject to federal vaccine-mandate rules. Requests for comment to the bills’ sponsors, state Sen. Danny Burgess, state Rep. Erin Grall, both Republicans, went unanswered Tuesday and Wednesday.
Christina Pushaw, a DeSantis spokesperson, blamed any conflict between the proposed legislation and the federal government on the Biden administration.
“The regulation of public health is a longstanding traditional state responsibility,” Pushaw wrote in an email Wednesday. “The Biden administration is overstepping its bounds and abusing its authority by forcing businesses, including health-care providers, to choose between following state law and complying with bureaucratic edicts from Washington.”
Any hospital would be devastated by the loss of Medicare funding. That’s the federal program that offers health insurance to the nation’s senior citizens. But those providers — particularly the state’s safety-net hospitals, which Senior represents — would also suffer from a potential loss of Medicaid funding. That’s the state and federal program that insures a large swath of vulnerable Americans, including millions of poor people, new mothers and persons with disabilities.
For hospitals, the choice between obeying the proposed state legislation or the federal rule would be no choice at all. The facilities would almost certainly go with the federal government.
“We are obligated to comply with the federal Centers for Medicare and Medicaid Services to ensure access to health care for millions of elderly Floridians and millions of vulnerable individuals who rely on Medicaid,” said Mary Mayhew, the President and CEO of the Florida Hospital Association. “We are not going to jeopardize access for those who depend upon Medicare or Medicaid.”
Nursing homes are also working to comply with the federal rule, said Kristen Knapp, the director of communications for the Florida Health Care Association, which represents more than 600 long-term-care facilities in the state. But Knapp noted that nursing homes will be monitoring next week’s special session as well.
State-licensed health-care businesses, like some assisted-living facilities, are not subject to the federal rule.
The Biden administration’s health care-rule conflicts with the bills filed by Republican lawmakers because it does not provide certain exemptions for employees hoping to skirt a vaccine mandate. Under the Florida bills, businesses wanting to mandate vaccination would have to provide their workers with several alternatives. For example, an employee could avoid mandatory vaccination if they can show they have tested positive for the virus previously, or if they agree to wear personal protective equipment. The Biden administration’s health-care rule allows only for a medical or religious exemption to the vaccine.
A different federal vaccine mandate, issued by the Occupational Safety and Health Administration (OSHA), comes with essentially the same exemptions as Biden’s health-care rule, plus it would allow workers to be tested weekly instead of getting the vaccine. The workplace rule would only apply to businesses of 100 or more employees. Although businesses have a Jan. 4 deadline to implement the rule, a federal appeals court temporarily put the workplace vaccine mandate on hold last week.
Florida is among the states challenging the workplace rule in federal court. Pushaw noted that the state also plans to file a challenge to the health-care rule.
When asked whether lawmakers were hoping to boost the state’s chances in its case against the health-care rule by creating conflicting standards between the state and federal government, Pushaw wrote, “The State of Florida’s motivation for challenging any and all federal vaccine mandates is to protect Floridians’ jobs and bodily autonomy.”