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Except that the role of the CMS, as established by congress, is to set the guidelines of care and standards of participation for providers who opt to accept Med
by mattzito 5y ago
Except that the role of the CMS, as established by congress, is to set the guidelines of care and standards of participation for providers who opt to accept Medicare and Medicaid patients.
They set rules for everything from how many hospitals can be owned by a single entity, to what sorts of qualifications are required for hospital administrators, to what types of medical orders are allowed to be given to patients. Their explicit charter is to ensure Medicare and medicaid patients are cared for and their health is looked after. From that lens, requiring a vaccination that reduces the likelihood that one of those patients is infected with a potentially deadly disease (particularly deadly for those on Medicare, given the demo), is eminently reasonable.
And the administrator is confirmed by congress. If this regulation was about almost anything else, this would be a nothingburger
- bko 5y ago> to what types of medical orders are allowed to be given to patients Suppose an anti-abortion president gets elected and he elects someone as head and tells them that health care providers that accept medicare or medicaid cannot provide abortions. Not making it illegal per-se, but just for the providers that accept medicare or medicaid for any of their services. You okay with this as well?
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- loudtieblahblah 5y agoi'm pretty sure the average person on Hacker News would be ok with the Social Security administration banning gas powered leaf blowers. This place has become as intellectually low-brow as Twitter and Reddit.
- bwb 5y agoGas powered leaf blowers would have to be banned under the law before a government agency can then afford said law. Bit different...
- JumpCrisscross 5y ago> Suppose an anti-abortion president gets elected and he elects someone as head and tells them that health care providers that accept medicare or medicaid cannot provide abortions Not comparable. Based on current law, abortion is a Constitutionally-protected right. Based on precedent from the Spanish-flu era, the government has broad public health powers. All that said, as someone who isn’t a fan of how much power Congress has ceded to the executive through administrative powers (which delegate legislative powers to the executive through rulemaking), I wouldn’t mind seeing those curtailed.
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- claytongulick 5y agoYou should probably read the Jacobson decision more carefully [1], since you believe that it grants the government the right to mandate vaccines. The decision is much more narrow that you've been led to believe. It specifically addresses state police powers, not federal powers. It also doesn't mandate vaccination, it allows a small fine to be paid instead. Also, according to a well known attorney I consulted (who has argued several cases before the Supreme Court) the Jacobson decision has been overturned countless times and is considered an awful ruling, the Healthcare equivalent of Dred Scott. [1] https://en.m.wikipedia.org/wiki/Jacobson_v._Massachusetts https://en.m.wikipedia.org/wiki/Jacobson_v._Massachusetts
- JumpCrisscross 5y ago> since you believe that it grants the government the right to mandate vaccines Specifically avoided saying that. Stated simply, my point is there is positive precedent to the precursors to vaccine mandates, and reasonable ambiguity to the question per se. There is clear negative precedent for abortion. As such, comparing them is misleading. (Better analogy may be found in gun rights.)
- DSMan195276 5y agoThe problem I see with this kind of argument is that whether a health care provider provides abortion services has very little (nothing) to do with the care given to a medicaid or medicare patients. Where-as them being vaccinated for COVID does have a very clear impact on medicaid/medicare patients, especially since medicare patients are more likely to be in a high risk group (IE: old). It seems to me like you just don't think medicare or medicaid should be a thing to begin with. I think it's basic sense that if we're paying for medicare and medicaid we should require the healthcare providers receiving our tax dollars to meet some standard level of care, or else we're just wasting our money. We can argue over what that level of care should be, but I don't think it's all that debatable that requiring things like vaccines could fall into that level of care if not having them is particularly risky for patients.
- bko 5y ago> The problem I see with this kind of argument is that whether a health care provider provides abortion services has very little (nothing) to do with the care given to a medicaid or medicare patients. There's no mechanism to enforce this reasoning. It's whether the agency has the power to do it or not. For instance it could be argued that natural immunity is far superior to vaccines, so excluding healthcare workers with natural immunity from working is not about protecting patients. > It seems to me like you just don't think medicare or medicaid should be a thing to begin with. ???
- nickgros 5y ago> There's no mechanism to enforce this reasoning. The mechanism would be the judicial system, and in the case of restricting abortion services, the regulation would probably be subject to strict scrutiny. https://en.wikipedia.org/wiki/Strict_scrutiny https://en.wikipedia.org/wiki/Strict_scrutiny
- DSMan195276 5y ago> There's no mechanism to enforce this reasoning. It's whether the agency has the power to do it or not. For instance it could be argued that natural immunity is far superior to vaccines, so excluding healthcare workers with natural immunity from working is not about protecting patients. I'm not sure what you're getting at, Congress gave the agency the power to set guidelines for requirements for caring for medicaid/medicare patients, that's what they do. If a guideline would not actually impact medicaid/medicare patients, then they can't do it and it would rightfully get struck down in court when it is challenged for not falling within their powers. That's quite literally the same mechanism currently being used to challenge their power to require vaccines. Your point about natural immunity seems reasonable, it doesn't mean requiring vaccines for those without natural immunity wouldn't still make sense though so I don't think it really fits your point. Claiming that the particular way they went about this requirement is bad is different from saying they can't require a vaccine at all. I think your point makes some sense, but it could still be paired with a vaccine requirement making it effectively the same thing. > ??? I thought what I said was pretty self explanatory. If Medicare and Medicaid are going to be worth it then we have to have some standard level of care that we're paying for - we shouldn't be paying tons of money just for medicare/medicaid patients to receive bad care. Why should my tax dollars to go a healthcare provider who doesn't want to get the vaccine when that money can go to one who will? The medicare/medicaid patients that we're paying for will get better treatment from those healthcare providers who require vaccination, and if better care is not the goal than what is?
- adrr 5y agoBanning health care providers from abortion would be unconstitutional. It would be the same as a president banning health care providers from serving muslims. Women have a constitutional right to get an abortion. People don't have a constitutional right to not vaccinate. Government can and has jailed and/or fined people for not getting a vaccine. These SCOTUS approved mandates helped rid America of smallpox.
- willcipriano 5y agoEhh constructional right is a bit strong. The supreme court ruled that the 14th amendment[0], has somewhere hidden within it a right to privacy. This right to privacy appearently applies exclusively to abortion, as warrentless wiretapping of every US citizen has been determined not to be a constitutional violation. I find it funny that they can find a right to privacy in the 14th, but give the thumbs up to civil asset forfeiture that directly contradicts the text and is a obvious violation. They seem to make things up as they go along depending on what is politically expedient. [0]https://constitution.congress.gov/constitution/amendment-14/ https://constitution.congress.gov/constitution/amendment-14/
- bbatha 5y agoThe right to privacy is in the 4th amendment, the 14th amendment is used to "incorporate" constitutional rights to the states. Prior to the 14th amendment the rights in the constitution only prevent abridgement of rights by the federal government but states were free to take them away.
- Chris2048 5y agoThen just ban men from having them as well. > Women have a constitutional right to get an abortion. Do they? Where is that written? EDIT: the vague "life, liberty, or property" clause as interpreted by Roe vs Wade. This is such a blank-cheque it may as well not be in the constitution as in hands all power to the interpretation of the courts.
- adrr 5y ago
- SkyPuncher 5y agoThe person you're replying to has a slightly incorrect statement. At least to my knowledge. CMS only controls this for patients covered by Medicaid/Medicare. It can set the tone for the entire industry, but does not solely control the industry. Typically, they create influence by setting/rejecting Medicaid/Medicare reimbursement standards. Since enough patients are covered by CMS, it tends to be easier for hospitals to broadly adopt the policies.
- mattzito 5y agoIt might be a difference without a distinction, but technically the provider is participating, non-participating, or opt-out. In the first two cases, the provider has to meet those standards, and while I'm sure that there might be deltas between how medicare/medicaid patients and non- are covered (e.g. minimum post-procedure length of stays), all of the requirements around the provider apply to everyone at the provider. That is, you can't have one hospital administrator with a degree for the medicaid people and one without for not - the hospital administrators, full stop, have to have the appropriate degrees and certifications.
- beerandt 5y agoNo- they say play by our rules for everyone or the majority of your revenue disappears.
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- mattzito 5y agoNo, of course not, but that's not what I was referring to - I was referring to, are doctors allowed to leave standing orders for patients? Can they give them over the phone? What kind of procedures can nurses and NPs order? Those sorts of things. Your example is a covered procedure, some of which is defined by the CMS, but much of it is defined by federal statute that dictates what classes of procedure are covered by medicaid/medicare. To go to your example specifically, federal statute ALREADY limits medicaid abortion coverage to abortions arising from rape, incest, or that put the health of the mother at risk. 16 states go beyond that and cover abortion in more cases, but they pay for that with their own money (which is also allowed statutorily). So in your case, what the new CMS head was declaring is unlawful on its face, as this is something that congress has specifically addressed.
- kelnos 5y agoI'm not ok with it, but would be forced to accept that it is within the authority granted to the agency to make that call. Assuming it is: I think policy measures like that should be subject to medical needs. I think there's a clear medical need to require COVID vaccinations for healthcare workers, but banning abortions doesn't pass that test. And hell, didn't the Trump administration actually do this, though maybe through different means? Withholding federal funding from providers who offer abortions?
- golemotron 5y agoThat's the key problem with the US now. Elected representatives are allowed to delegate law making. It breaks the line of accountability. It makes contentious issues worse.
- runako 5y ago> the key problem with the US now. Elected representatives are allowed to delegate law making. Congress does not delegate lawmaking, Congress delegates the execution of its powers to the Executive branch. This is how the country has functioned since the beginning, for it would be impractical for it to work otherwise. Say more: delegation will happen at some level, by definition. In military matters, every step or shot a soldier takes is a decision that has been delegated through a chain of command from Congress. Since Congress is not ever going to be in a position to execute every decision for every individual over which Congress has power, Congress inevitably will delegate the execution of its powers. It has always been this way, and will be this way as long as we have a republic.
- golemotron 5y ago> Congress delegates the execution of its powers to the Executive branch That's the Constitution, not Congress. Regulation, as well, is not execution. Thomas's concurrence on Whitman v. American Trucking Ass’ns signals where things might go.
- runako 5y ago> Regulation, as well, is not execution. This is an opinion that was not widely held for most of the last 100 years or so. > Thomas's concurrence on Whitman v. American Trucking Ass’ns signals where things might go. Definitely agree that our legal regime looks headed for major changes. I consider it likely that SCOTUS will reverse itself on a set of major principles, creating uncertainty for citizens and businesses until a new equilibrium is reached.
- handrous 5y agoI'd say the key problem is that our electoral system and the structure of our government are broken in a few very serious ways, most of which are nearly impossible to fix, in no small part because fixing most of them would require at least one of our two major political parties to be OK with voting themselves into a weaker position (since some of the most important problems cause there to be only two viable parties at a time and fixing them would weaken the position of both those parties), or else they'd require a constitutional amendment, which is even less likely. Most of our other problems are a consequence of that.
- roamerz 5y agoExcept this isn’t about almost anything else. This is about control over one’s body. This is from someone who chose freely to get the vaccine. Even at my own peril I support other’s freedom to choose.
- clukic 5y agoDoes that mean you support a rollback of all vaccine requirements? For example the MMR, TDap, HepB, polio, chicken pox vaccines required for school children? Or the numerous vaccines required for military personal? And would you be comfortable having a pediatrician who wasn't inoculated for diphtheria knowing that an infection could be fatal for your baby?
- HamburgerEmoji 5y ago> Does that mean you support a rollback of all vaccine requirements? I can't speak for the person you're talking to, but those old vaccines are actual vaccines, unlike the recent mRNA injections, which are so different from what we typically think of as vaccines that the CDC had to change its definition of the word "vaccine" to remove the notion that a vaccine provides protection from a disease. So of course not. The old diseases were serious threats, and the old vaccines were actual vaccines. Not similar to the current situation, where the virus is a negligible threat to all people who are not elderly or suffering from serious disease already, and the injection being proffered does not prevent a person from contracting or transmitting the virus.
- belltaco 5y agoThese are healthcare workers. Jobs have requirements. They're free to quit instead of increasing the dangers of disease for their sick and older patients who are at highest risk for covid. No one is controlling their body any more than making it show up at work in order to get paid. Coal miners are forced to work in dangerous conditions around the world in order to keep their job. Getting a vaccine is far less risk, there have been 8 billion plus vaccine doses given against covid around the world.
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- teeray 5y agoSure, that’s the loophole. What’s happening here is yet another end-run around the democratic process. People are tired of emergency powers, executive orders, and delegated authority being used to enact some of the most impactful laws of our time. We want the Schoolhouse Rock version of law-making because we at least get something of a say in it.
- jeremyjh 5y agoI don’t think you understand the role of regulatory agencies in our government.
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- redblacktree 5y agoCongress has delegated the authority to make these decisions to regulatory agencies. If congress wants that authority back, they can get it back via legislation. The responsibility for the current situation starts and stops with congress. The executive branch is doing what congress has asked it to do, and the executive branch would stop doing those things the moment that congress legislated the authority back to themselves.
- bingohbangoh 5y agoDoes the CDC have regulatory mandates to ensure vaccination? Does this extend to "get vaccinated or get fired?" People very broadly give power to the CDC that I don't think they have.
- javagram 5y agoWhy are you mentioning the CDC? Do you know that the two federal mandates were issued by CMS and by OSHA, two completely different organizations from the CDC? BTW, the law as written gives very broad powers to OSHA and other agencies. This is controversial mainly because one political side in the country is anti vaccine right now.
- BurningFrog 5y agoIf that's true, how come several federal judges have come to the opposite conclusion in their rulings?
- kelnos 5y agoI can only assume they're allowing their personal politics to get in the way of making a sound legal decision.