HEALTH CARE BRIEFING: Biden’s Shot Rule Hinges on Supreme Court

The fate of President Joe Biden’s push to vaccinate millions of workers amid the latest Covid-19 surge rests with a U.S. Supreme Court likely to be wary of his assertion of broad federal power to confront the pandemic.

The justices hear arguments tomorrow on two administration rules, one demanding 80 million workers get vaccinated or regularly tested, and a second requiring shots for workers in facilities that receive government health-care funds. Business groups and Republican-led states are trying to stop the rules from taking effect, saying they would cost billions of dollars and violate state sovereignty.

The initiatives represent the heart of Biden’s plan to increase the country’s vaccination rate as the omicron variant propels a spike in cases. The U.S. Centers for Disease Control and Prevention says only 62% of the country is fully vaccinated and just 35% of people have received a booster shot.

But administration lawyers will have to persuade a conservative-majority court that has already blocked one Biden effort to contain the deadly virus. The justices in August lifted the CDC’S moratorium on evictions, saying that landlords were suffering “irreparable harm” and that Congress hadn’t given the agency the type of “sweeping authority” it was asserting.

The double showdown will mark the first time in decades the court has heard arguments on emergency requests for a stay without ordering the full briefing that occurs when cases are heard on the merits. The court could rule in a matter of days.

A Supreme Court spokesman said this week that all nine justices have received booster shots, indicating they don’t have personal objections to the vaccines. And the court has been receptive to targeted vaccine mandates issued by state and local officials, repeatedly rejecting religious objections.

Still, the latest cases involve very different legal issues: The power of federal agencies whose governing statutes don’t explicitly authorize vaccine requirements. Curbing federal agency power has been a core issue for several members of the court’s conservative wing. Read more from Greg Stohr.

Happening on the Hill

GOP Launches Covid-19 Origins Website: House Energy and Commerce Republicans yesterday announced the launch of a website for people to report tips about Covid-19’s origins. Republicans have pushed for congressional investigations into whether the virus first spread as a result of a laboratory accident in China, Alex Ruoff reports.

Republicans Hit Biden Over Testing Funds: Reps. Jason Smith (R-Mo.), Cathy McMorris Rodgers (R-Wash.), and Kevin Brady (R-Texas), the top Republicans on the House committees on Budget, Energy and Commerce, and Ways and Means, respectively, wrote a letter to Health and Human Services Secretary Xavier Becerra complaining that Biden may request more money to respond to Covid-19 for more testing capacity after already pushing a partisan $1.9 trillion relief bill through Congress in March.

The Coronavirus Pandemic

Pfizer Covid Booster Gets CDC’s Backing for Teens: The CDC said vaccinated teens should get the Covid-19 booster from Pfizer and BioNTech, an important step in efforts to expand immunizations and keep schools open. The approval comes after a panel of outside experts convened by the CDC voted to 13-1 to recommend the booster for people ages 12-17 who received their second dose at least five months earlier. Director Rochelle Walensky then made that advice official shortly after, making booster doses for that age group available across the U.S. after the FDA authorized it earlier this week. Fiona Rutherford has more.

• Still, the omicron variant appears to be less severe than the delta variant for children, according to a member of the White House Covid-19 Response team, Ben Wakana, citing Anthony Fauci, Jessica Park reports.

Soaring Omicron Threatens Hospitals, Rivaling 2020 Peak: Though the omicron variant tends to be milder, it is spreading so explosively across the U.S. that many hospitals expect it to rival or surpass previous records for admitting Covid-19 patients. Hospitals are bracing for a continuous rise in Covid-related bed demand for the month ahead, according to models from several facilities around the country. The rising demand for beds has prompted health officials to step up some protective measures, including urging people to obtain vaccine boosters and wear higher-quality masks, even though omicron infections appear to cause milder symptoms than earlier strains. Read more from Carey Goldberg and Jonathan Levin.

• New York City Health Commissioner Dave Chokshi said Covid-19 data suggests the city hasn’t yet hit a peak in the omicron-fueled spike of coronavirus cases in recent weeks. Cases and hospitalizations are still increasing and “I expect that will continue in the near term, meaning the next days to weeks,” Chokshi said in a briefing yesterday. He said the steepness of the curve appears to be falling, but that could be due to the changes of holiday testing patterns. Read more from Shelly Banjo and Jonathan Levin.
• Read a roundup of yesterday’s news on omicron’s impact around the world from Bloomberg News here.

What Biden’s Team Is Doing to Expand Access: Biden’s administration is moving to boost availability of Covid-19 tests in the U.S. and shift the cost for at-home kits to private insurers as the omicron variant creates unprecedented demand. The administration also is finalizing deals to buy 500 million at-home tests that it plans to send to Americans, while opening testing centers and working with Google to improve search results for site locations. Josh Wingrove gives a a rundown of steps the Biden administration says are underway to expand test availability. What’s not known: whether the measures will be enough to meet demand as cases continue to spike.

• Related: Scarce At-Home Covid Tests Leave Some Consumers Paying $40 a Pop

CDC Doubles Down on ‘Fully Vaccinated’ Definition: The CDC’s definition of fully vaccinated remains two weeks after the primary dose or doses, CDC Director Rochelle Walensky said at a White House press briefing yesterday. “Individuals are considered fully vaccinated against Covid-19 if they’ve received their primary series. That definition is not changing,” she said. Furthermore, the federal government has no plans to change the definition of fully vaccinated for travel guidelines, Medicare rules or any other federal requirements, White House coronavirus response coordinator Jeff Zients said during the same briefing, Jeannie Baumann reports.

Chicago Teachers Clash With Biden’s School Push: The Chicago Teachers Union’s move to halt in-person instruction amid surging Covid cases has not only escalated its clash with city officials but has put it at odds with the White House. The nation’s third-largest school system canceled classes for as many as 330,000 students today for the second-straight day after the union and school officials didn’t reach an agreement on mitigation measures. The union voted late Tuesday to shift to remote learning, and the district has called it an “illegal strike.” Read more from Shruti Date Singh.

• Related: Puerto Rico Delays School Start by Two Weeks Amid Omicron Surge

Unions Seek to Force OSHA Revival of Covid-19 Health-Care Rule: Federal workplace safety regulators unlawfully withdrew requirements for health-care employers to protect workers from Covid-19 infections, a coalition of unions alleged in a federal lawsuit filed yesterday. At issue is the agency’s emergency temporary standard that required health-care employers to take specific measures to protect staff by implementing Covid-19 infection control plans, providing paid leave for quarantined workers, and limiting who could enter buildings. Read more from Bruce Rolfsen.

More Headlines:

• S. African Omicron Excess Deaths Peak at Fraction of Other Waves
• Japan Urges U.S. to Limit Troop Movements Over Covid-19 Spread
• Postal Service Asks for Temporary Waiver From Biden Vaccine Requirement (Washington Post)

What Else to Know:

• Vaccine Injury Plaintiff Denied Pay for Alleged Residual Effect
• North Carolina Medicaid Agency’s Denial of Benefit Held Improper
• Matrix Medical Wins Antitrust Appeal Over $160 Million Merger
• Novartis Must Wait to Appeal in Suit Over Leukemia Drug Tasigna

With assistance from Alex Ruoff

To contact the reporter on this story: Michaela Ross in Washington at mross@bgov.com

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bgov.com; Giuseppe Macri at gmacri@bgov.com; Brandon Lee at blee@bgov.com