The COVID Compromise: Fighting for Safe Hospitals

To allow Texas hospitals to continue protecting their patients and their environments against COVID-19, the Texas Hospital Association had to get creative.

Early in the Texas Legislature’s third special session of 2023, it became clear – despite THA’s best efforts – that there would be no route to fully exempting hospitals from Senate Bill 7 by Sen. Mayes Middleton (R-Galveston), which bans any business from requiring employees to be vaccinated against COVID-19.

When that became apparent, THA pivoted to pushing for a different special consideration for health care facilities – one that would allow hospitals to require unvaccinated employees in direct and routine contact with patients to wear personal protective equipment (PPE) and take other steps that would create distance between those employees and the delicate zones of patient care.

“Ultimately, there was no wiggle room,” said Carrie Kroll, THA’s vice president of advocacy, public policy and political strategy. “And when that became clear, we decided we needed to do something to keep vulnerable patients safe with this policy.”

After a turbulent few weeks of public debate and private negotiations, SB 7 earned final passage on Tuesday with those THA-crafted safeguards in place. The bill is now headed to Gov. Greg Abbott’s desk.

No route to a carveout

Gov. Abbott’s original call for the third special session on Oct. 5 asked the Legislature to act upon “Legislation prohibiting COVID-19 vaccine mandates by private employers.” But a circulated original draft of the bill wasn’t as restrictive on hospitals’ COVID-19 vaccination policies as what was initially filed as SB 7 on Oct. 9.

The bill filed by Sen. Middleton contained no exceptions for health care facilities or any other type of business. Straightforwardly, it said employers “may not adopt or enforce a mandate” requiring a COVID-19 vaccine as a condition of employment, and could not take adverse action against an employer or contractor for not getting the vaccine.

Community Hospital Corporation: Essential support to strengthen hospitals

During the regular legislative session earlier this year, THA successfully convinced lawmakers to carve out hospitals from similar bills banning COVID-19 vaccine mandates, tying those exemptions to the Centers for Medicare & Medicaid Services COVID-19 vaccine mandate that was then was in place. Hospitals taking Medicare and Medicaid patients, THA successfully argued, needed to be able to conform to the federal mandate and not jeopardize their federal funding.

But by the time of the third special session, the CMS mandate had expired with the end of the COVID-19 public health emergency. Lawmakers made it clear to THA’s advocacy team that with no federal mandate in place, hospitals would not be exempt.

“Reasonable” middle ground

Negotiating with Sen. Middleton and other key lawmakers, THA then shifted to pitching the hospital safeguard language that would eventually make it into the final bill: allowing health care facilities and providers to “establish and enforce a reasonable policy that includes requiring the use of protective medical equipment” by an employee not vaccinated against COVID-19, “based on the level of risk the individual presents to patients from the individual’s routine and direct exposure to patients.”

Essentially, including that language allows policies that require not just the use of PPE, but also steps such as reassigning unvaccinated employees to other parts of the facility, where their lesser protection against COVID-19 can result in less damage.

There was still a sticking point in the new language, however: the definition and arbiter of what a “reasonable” policy would be to impose requirements on an unvaccinated employee. Some lawmakers in the negotiations wanted to put the decision of what’s reasonable in the hands of the Texas Workforce Commission (TWC) – a provision THA was not comfortable with because of TWC’s lack of specific purview over health care.

So, THA successfully fought for the inclusion of language that would put a state health authority – specifically the Texas Department of State Health Services (DSHS) – in charge of making that decision. If a complaint is filed with TWC alleging a health care facility violated the COVID-19 vaccine mandate ban, TWC must consult with DSHS to determine whether the facility’s vaccine policy was reasonable.

“Based on that determination, the workforce commission can then move forward with the administrative penalty,” Kroll said. “So the ‘reasonable’ [language] is still there, but it does allow for somebody with expertise in infectious disease protocol to make that determination.”

The House ultimately passed SB 7 with that language last Friday, but only after making amendments that contained two changes relevant to hospitals and health care providers. As passed, the bill now includes medical and nursing students as contractors who are subject to the ban on COVID-19 vaccine mandates. And the penalty for an employer that violates the law – which had started at $1,000 in the original bill and went up to $10,000 later on – is now at $50,000.

Looking ahead: Anticipating more attacks on vaccines

Kroll says that despite the concessions made on behalf of hospitals in SB 7, THA’s position on a hospital’s right to set its own vaccine policies hasn’t changed: Facilities should be able to make the decision on what’s best for their patients and their community.

“We remain opposed to a policy of any vaccine prohibition on hospitals,” she said. “THA supports vaccination as a key tool in protecting the public’s health.”

With anti-vaccine forces gaining increased traction both before and after the pandemic, there’s profound concern that a ban targeting the COVID-19 vaccine is only the beginning. THA will continue working between now and the next regular state legislative session in 2025 to preempt attempts by the anti-vaccine community to weaken or eliminate mandates tied to other vaccines, including childhood immunizations that have been safe and effective for decades.