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Supreme Court killing Covid vaccine mandates wouldn't leave Biden without options

A vaccine mandate isn't the only arrow in Joe Biden's quiver.
Image: A person wearing scrubs receiving a vaccine.
Tykerra Wilson, a medical receptionist at a doctor's office in Cambridge, Md., receives her second Covid vaccine shot last February.Will Newton / The Washington Post via Getty Images file

No matter what the Supreme Court decides regarding President Joe Biden's Covid-19 vaccine mandates, the president and his administration must do everything it can to increase vaccination uptake in the United States and move forward with alternatives to vaccine mandates if the court rules against them.

Despite the possibility that the Supreme Court overturns both requirements, the Biden Administration still has some arrows in its quiver.

The best scenario, of course, is that the Supreme Court upholds the requirement from the Occupational Safety and Health Administration that businesses with at least 100 employees make their employees be fully vaccinated or undergo weekly Covid-19 testing; that the court also upholds the Centers for Medicare & Medicaid Services requirement that health care workers who treat Medicare and Medicaid patients be vaccinated; and that the states allow for institutions and employers to implement or continue programs that can save thousands of lives and prevent 250,000 hospitalizations.

Despite the possibility of the worst case scenario — that the Supreme Court overturns both requirements, exposing millions of Americans, including patients at hospitals, clinics or nursing homes to risk — the Biden Administration still has some arrows in its quiver, especially in the fight to increase vaccination rates among health care workers. According to the CDC approximately 30 percent of nursing home workers remain unvaccinated. This at a time when the omicron variant has hit employees hard with staffing shortages in all sectors, including health care.

Though widespread vaccination among health care workers is the best solution, if a mandate isn’t allowed, the administration can entice health care operators with other incentives. For example, a Medicare health care quality measurement program called the Merit-Based Incentive Payment System (MIPS) is almost universally seen as more burdensome than productive in improving the quality of health care for patients. A recent study found that many medical practices have had to hire more full-time staff and cut back on direct patient care to fulfill reporting requirements that generally consist of little more than clicking boxes inside the electronic health record. The program has not resulted in better care and might even result in worse care for marginalized populations. Granting practices an exemption from that requirement, even temporarily, in exchange for higher vaccination rates would most likely be met with incredible support.

Requiring practices to be transparent about their vaccination rates could also be an effective tool. Sunlight has proven to be the best disinfectant in other situations. For example, posting of hygiene ratings in grades A to F in California resulted in a significant decrease in food borne illnesses. Imagine a requirement that the vaccination rate in every retail site, health care facility and business of a certain size be posted prominently. The potential for effects on consumer behavior could promote institution-based initiatives to drive up vaccinations without dictating the nature of any incentives or penalties.

A more controversial but more consequential action could be establishing the right of patients to demand a vaccinated healthcare worker.

A more contentious but more consequential action could be establishing the right of patients to demand a vaccinated health care worker. While it might be considered an overreach to disclose an individual employee’s vaccination status, there is no reason why privacy rules should be used to deny patients the right to receive care from vaccinated health care workers. Evidence shows that due to the close nature of care, especially in hospitals, nursing homes and long-term care facilities, patients are vulnerable to infection from health care workers. Nursing homes have been ground zero for such occupational hazards; 94 percent of them have experienced two or more outbreaks of Covid-19 among residents or staff.

Even if both the OSHA and CMS requirements survive, the proverbial patient is still on life support. The furor against vaccine mandates and requirements persists, so efforts to increase vaccination rates in a nonpunitive way continue to be important. Employing incentives that lift the burdens of regulation and provide relief in some non-Covid related workplace requirements could truly be the prescription we need.