Providing for Congressional Disapproval Under Chapter 8 of Title United States Code, of the Rule Submitted By the Centers for Medicare Medicaid Services Relating to ``Medicare and Medicaid Programs; Omnibus Covid-19 Health Care Staff Vaccination''

Floor Speech

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Mr. MARSHALL. Madam President, last year, I put my sport coats and ties away and broke out some scrubs, found my stethoscope and a lab coat, and went to work fighting COVID on the frontlines of hospitals and community centers in Wyandotte County, KS, and Seward County, KS.

This is a picture of some of the heroes I worked with. I think what is important to note is this is a time when none of us knew how bad this virus was. It reminded me, as a medical student, working on HIV patients. Myself geared up from head to toe with patient protective equipment, personal protective equipment, nurses, respiratory therapists, radiology techs--all of us not knowing how bad this virus was and how easily it could spread.

Today, these heroes are being punished. These heroes came to work every day covered from head to toe in personal protective equipment, with each one knowing that they could contract COVID-19 from any one of their patients at any given time.

This particular setting, an ICU--an ICU with 8 beds and 13 patients.

Despite the risk to them, to their families--think about that. Think about having children at home or a spouse, that you were not only risking your own life but the fear of taking this virus home with you. But they threw themselves into the fire, so to speak, all in the effort to save Kansans from a pandemic that was raging across our communities.

In the earliest months of this pandemic and still to this day, our healthcare heroes have displayed sacrifice and dedication to the American people. It is a reminder to all of us how essential these people are in ensuring the safety of our communities.

They weren't left unscathed. Between burnout and suicide, the pandemic took a heavy toll on their physical and mental health-- doctors, nurses, all the supporting staffs in these hospitals, in the nursing homes, in the emergency rooms.

The resulting exodus of fatigued and demoralized doctors and nurses and other frontline workers is exacerbating a labor shortage which already existed across rural Kansas and across rural America long, long before the pandemic occurred.

Since February of 2020, roughly one in five healthcare workers has quit their job--one in five--according to a poll published late last year. In September, the American Nurses Association sent a letter to HHS Secretary Becerra urging the Agency to declare the nursing shortage a national crisis and to take immediate action to confront the issue.

I can tell you, I don't talk to any doctor back home, any hospital administrator, who is not going to grab me and say: We have got a huge nursing shortage. You have to do something about it.

The nursing homes, the rehab centers are all suffering huge, huge nursing shortages. The nursing colleges are now having a huge shortage of teachers. Nearly a third of the country's 15,000 nursing homes reported a shortage of nurses or aides. Hospitals have been forced to recruit foreign nurses, and National Guardsmen have had to fill in as nursing assistants to ease these problems. These shortages are particularly impactful in rural areas like my home State of Kansas.

The Centers for Medicare and Medicaid Services acknowledges there are currently ``endemic staff shortages for all categories of employees at almost all kinds of healthcare providers and suppliers.'' Despite this acknowledgement, President Biden and his public health officials went forward with this vaccine mandate, knowing it could and would lead to more firings--firings like those we saw in New York, where 33,000 healthcare workers were fired--33,000. They were fired, retired, or placed on unpaid leave because they chose not to abide by the State's mandatory inoculation policy.

Labor shortages at healthcare facilities will impede access for the elderly and the poor--those who are supposed to be cared for under Medicare and Medicaid.

In addition to the impact this would have on the healthcare workforce, this mandate puts additional burdens on hospitals and State surveyors. The rule requires covered entities to comply with redtape by requiring them to develop and implement policies to ensure compliance with the mandate, meanwhile taking nurses away from that contact with the patients who need the attention.

CMS estimated that the cost of this mandate on private-sector entities would exceed $158 million. Follow-on guidance issued by CMS recently also required State surveyors to enforce the Federal Government's vaccine mandate by verifying compliance at healthcare facilities. This will take away, again, limited resources at the State level and prevent them from fulfilling their traditional surveying and certification duties, not to mention multiple States have laws on their books prohibiting vaccination as a condition of employment for State agencies.

As a physician, I am confident that the vaccine has saved lives, and I am so grateful for the vaccines. However, whether to receive it or not is a personal choice between individuals and their doctor, not mandated via unconstitutional Executive actions. I still believe in the sanctity of the patient-physician relationship.

Make no mistake, this Federal vaccine mandate is not about public health or science and fails to account for changes in data and the circumstances of the virus. If it were, we would recognize natural immunity as a highly effective way to combat the virus. Mountains of evidence show that those who achieved immunity through natural infection--many of them being on our frontline, those healthcare heroes from yesterday--are highly protected against reinfection.

The mandate was also crafted when the Delta variant was the dominant strain in the United States. Omicron is now the dominant strain. It is much milder and has a 91-percent lower risk of death than Delta.

Additionally, research shows the traditional COVID vaccine dosing regimen provides little protection against transmission of the Omicron variant, basically said that natural immunity is at least as good if not better than vaccination from the original vaccines.

As noted by Dr. Fauci, ``Omicron, with its extraordinary, unprecedented degree of . . . transmissibility, will ultimately find just about everybody,'' and even those who have received the initial vaccine and subsequent booster ``will still get infected.'' And we saw that play out, right? We all saw that play out. Many, many people who had gotten the vaccine ended up with the Omicron virus, and certainly we also found out that natural immunity was much better than the original vaccines against Omicron.

Most absurdly, in late January, the CDC issued guidance that allows COVID-positive healthcare workers to return to work. Let me say that again. The hypocrisy. The CDC issued guidance that allows COVID- positive healthcare workers to return to work even if they are still testing positive. How many people in America would want a COVID- positive respiratory therapist intubating their loved one in an ICU?

These examples just show how flawed the science is behind the CMS vaccine mandate. As previously stated, that is because this vaccine mandate is not about public health or science. The Biden administration's mandate is about fulfilling their desire to control every aspect of our lives, and it is a slap in the face to the hard- working men and women who never took a day off in the frontline fight of the COVID-19 battle.

These are real people with real families. They are working to feed their families, and they have mortgages to pay. And these are smart people. These are well-educated people--people who thoughtfully considered the vaccine and then decided it was not best for them. These were my medical school classmates, successful physicians working at medical centers, experts in their fields who had looked at the data and had deeply either religious reasons or scientific reasons for not taking the vaccine.

Each day, we hear from Kansans faced with the difficult decision of taking the jab or losing their job. We even surveyed dozens of healthcare providers across the State who are already citing shortages and other staffing issues due to the mandate. In fact, 87 percent of the surveyed oppose the mandate or cited numerous concerns with it.

These jobs can't be replaced overnight, and with the March 15 deadline for nearly all healthcare workers who haven't received two doses looming, what we are about to witness is a government-induced labor shortage and, in turn, a health crisis we can't afford. That health crisis will affect every American, whether you are waiting for your elective hip to be replaced or you are waiting to get your loved one moved from a hospital setting into some type of a nursing home or assisted living facility. You all, every one of us, will be impacted.

One respondent put it best when he told us this:

[W]e are concerned that the execution [of the mandate] will exacerbate an already dire workforce crisis in long term care. A hard deadline with no resources for providers or glide path for unvaccinated workers is likely to push too many out the door and ultimately, threaten residents' access to long term care.

Now, I know some here will say that the Supreme Court ruled to uphold this mandate earlier this year and this is settled, but that is not the full story here. The Supreme Court opinion which lifted the stay on the rule focused primarily on the Secretary of HHS's statutory authority to impose conditions upon healthcare facilities participating in Medicare and Medicaid. This does not mean it is a good rule or it is a beneficial condition to have placed on those facilities given everything I have laid out here today. In fact, it is a hardship to those facilities, and it is a hardship for the families of the loved ones who are in those facilities.

This fight against a harmful rule continues here on the Senate floor, and I am going to keep fighting along with all those throughout this Nation's Federal judicial system.

Quick update. Sixteen States have joined together in a new filing last month to once again block the Federal Government from enforcing the mandate in their respective States. Sixteen States think the CMS has got this wrong. They think the White House has got this wrong. Additionally, the attorney general in my home State of Kansas, Derek Schmidt, is leading the fight. He, along with nine other attorneys general, has asked a separate Federal court to reopen litigation.

No, we are not even close to stopping this fight.

It has been an incredibly tough time these past couple of years. We have lost over 950,000 Americans to COVID-19. We have seen mental health issues skyrocket, suicides on the rise, and substance abuse increase.

But if there is one thing that is for sure, though, it is that Americans will keep fighting to get through this. Frontline workers in hospitals, doctors' offices, community health centers, and beyond will fight even harder; that is if we remove the burden of the vaccine mandate and our healthcare heroes aren't forced to leave their jobs.

Just this week, England terminated their COVID vaccination requirement for all health and social services. We must do the same. I urge my colleagues to support this resolution of disapproval to invalidate President Biden's overreaching and harmful vaccine mandate for our healthcare workers. This is a major element of the government's overreaching COVID-19 response that must begin to be scaled back. Not only is it coercive and unconstitutional, the mandate does not take into account the fact that natural immunity is as effective as the vaccines and that vaccines do not prevent transmission of the Omicron variant. Additionally, we all know--we all see it--we have a massive labor shortage in our healthcare industry and must do everything in our power to fight for Americans who ran to the sound of the battle, for these are the true heroes of the pandemic and deserve our best fight and utmost respect.

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Mr. MARSHALL. Madam President, I appreciate the comments of my colleague from the great State of Oregon, but his arguments all rely upon one assumption, and that is that the vaccine works to prevent transmission.

But the vaccines don't work to prevent transmission.

The Supreme Court's ruling was not a ruling on merit. The Medicare and Medicaid vaccine mandate will impact every family, every person across this great Nation. We already have a dire shortage of doctors, nurses, ultrasound techs, custodians, housekeepers, kitchen staff in all these hospitals and nursing homes. This mandate will result in more staffing shortages and firings.

The science behind this mandate is quite outdated. Natural immunity is stronger than immunity achieved through vaccination at this point in time.

Last night, during the State of the Union Address, President Biden said:

Let's stop looking at the COVID-19 as a partisan dividing line.

Let's take him at his word. Let's make our actions be consistent with his words. Let's repeal this divisive mandate today.

I urge all my colleagues to support our resolution.

Vote on S.J. Res. 32
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