Kansas regulators won’t enforce the federal COVID-19 vaccine mandate at hospitals and other health care facilities, Gov. Laura Kelly announced Tuesday, meaning federal officials plan to step in.
State surveyors, who assess whether facilities receiving funding from the Centers for Medicare and Medicaid Services are in compliance with the appropriate regulations, won’t enforce the vaccine mandate.
The move comes after Kelly’s administration negotiated with the U.S. Department of Health and Human Services officials on the matter, including a Jan. 29 meeting between Kelly and Secretary Xavier Becerra, to discuss the mandate’s effects on Kansas facilities.
Attorney General Derek Schmidt, the Republican frontrunner to challenge Kelly in November’s gubernatorial election, previously called on Kelly to petition the federal government for a waiver exempting hospitals from the order. That came in February.
Schmidt was part of a legal challenge to the CMS mandate. The Supreme Court declined to block the mandate.
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“I’ve consistently opposed federal COVID-19 vaccine requirements because the responsibility was given to the states to make these decisions,” Kelly said in a statement. “Kansas employees should not be required to enforce a federal mandate this late in the pandemic.
“In addition, mandates like this could further intensify the workforce shortage we are experiencing in our health care facilities throughout the state. CMS leadership has assured me they’re working with facilities and will not take punitive measures.”
A CMS letter to the governor’s office was less reassuring, threatening to cut funding for surveyors so the federal agency could increase its own regulatory presence in the state.
“We are not waiving any terms and continue to expect full performance of Kansas’ obligations under the law and pursuant to the Agreement,” the CMS letter states.
The state has an agreement with the HHS that it will survey for compliance with federal regulations, and in exchange CMS provides Kansas with funding. The letter noted the state’s “refusal” to survey whether health care providers are following the vaccine mandate.
“If Kansas continues to not fulfill its responsibility to survey and certify the compliance
of Medicare- and Medicaid-certified providers and suppliers,” the CMS letter read, Kansas will lose nearly $350,000 in federal funding.
CMS will then use that money to hire federal surveyors to ensure compliance among an estimated 1,120 providers in Kansas covered by the vaccine mandate.
“While we are disappointed in Kansas’ approach to meeting its survey and certification requirements,” the CMS letter states, “please be assured that CMS will continue to take every step possible to ensure the safety of patients and that federal funds are efficiently administered.”
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Kansas gets about $6.5 million annually from CMS for survey work.
Kelly said the state plan “protects our workforce, ensures patient and resident safety, and complies with existing state law.” It is unclear whether state employees would have broken state law if they enforced the federal vaccine mandate.
A year ago, the Legislature added a budget proviso prohibiting state agencies from using state money to implement a vaccine mandate. That would likely prohibit state surveyors from checking health care staff vaccination status, unless the surveyors were entirely funded by the federal government.
Additionally, while the CMS rule allows medical and religious exemptions, a state law passed during the November special session made it easier for workers to opt out over religious and moral objections. It is unclear if the state law conflicts with the CMS rule.
Data collected by the Kansas Department of Health and Environment and Kansas Department for Aging and Disability Services show most facilities in the state have yet to meet the state’s 90% staff vaccination rate goal.
The latest KDHE cluster report showed 71 active outbreaks at nursing homes and other long-term care facilities. Those clusters were connected to 1,437 cases, 26 hospitalizations and 29 deaths.
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Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.
