Asian female medical professional with hand on head
Credit: ER Productions Limited/Getty Images

Nursing homes across several states are being forced to choose between following federal law over state regulations in response to threats from governors and lawmakers over the vaccine mandate for healthcare workers. 

Some policies would make it illegal for providers to implement vaccination mandates for workers, while others could be fined for complying with the federal rule.  

“We cannot penalize long-term care providers who serve the state’s most vulnerable population and that have borne the greatest impact from this pandemic,” Steve Bahmer, president and CEO of LeadingAge Florida, said in a statement Friday. 

The organization issued the warning as Florida lawmakers this week to consider legislation that aims to block vaccine mandates issued by employers. Lawmakers are “poised to pass” the legislation, which would make it impossible for providers to be in compliance with both state and federal guidance unless a healthcare exemption is put in place, LeadingAge Florida argued. 

Florida providers, along with those in Texas and Oklahoma, are all facing the similar predicaments after the Centers for Medicare & Medicaid Services earlier this month announced the details of a federal COVID-19 vaccine mandate for all workers at Medicare- and Medicaid-certified facilities. The rule was first announced by President Joe Biden in September. Providers that don’t comply risk losing their federal funding. 

“Nursing homes must comply with the federal rule because the federal law trumps state law,” Bahmer warned. “The loss of Medicaid and Medicare funding would be devastating to providers and could ultimately displace Florida’s most frail elders.” 

In Texas, shortly after Biden announced the regulation, Texas Gov. Greg Abbott (R) issued an executive order prohibiting any entity in the state from mandating COVID-19 vaccines for employees. Those who fail to comply with the order could be hit with a $1,000 fine. 

“The combination of the pending federal requirements and a potential state law that would prohibit vaccine mandates would force providers into an untenable position to choose between violating state law or losing its two primary sources of funding,” Kevin Warren, president and CEO of the Texas Health Care Association, said of the conflicting measures.

Meanwhile, in Oklahoma, state Rep. Tom Gann (R) filed a bill last week that would make it illegal for private businesses to require workers to receive any emergency-use authorized vaccines, including two of the three COVID-19 vaccines.

CMS officials, however, made it clear last week that the federal rule overrides any conflicting state order after receiving multiple questions regarding the interaction of the regulation with state and local laws. 

“The bottom line is that this regulation preempts any state or local law, as well as state-issued executive orders under the Supremacy Clause of the U.S. Constitution,” CMS Chief Medical Officer Lee Fleisher, M.D., said during a stakeholder call.