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Below: Biden's pledge on masks and tests may come after omicron peaks in some big cities, and a key Senate panel advances Biden's pick to lead the Food and Drug Administration. But first: 

On vaccine mandates, SCOTUS says yea for medical workers but nay for private employees

To mandate coronavirus vaccines or not?

That decision will now be left up to private businesses after the Supreme Court blocked President Biden’s vaccinate-or-test policy for large employers. 

The ruling delivered a huge blow to the administration’s most sweeping attempt to increase America’s lagging vaccination rate. But the high court is allowing a separate policy to go forward, requiring vaccinations for most health-care workers at facilities receiving Medicare and Medicaid funds. 

The justices’ orders may seem like a split decision, our colleague Robert Barnes writes. But the vaccinate-or-test mandate would have covered roughly 84 million people. The health worker requirement applies to just about 10.4 million workers. 

  • What the ruling means: “We are highly unlikely to ever get to 85-90 percent of Americans vaccinated,” Celine Gounder, an epidemiologist and infectious-diseases specialist at New York University who advised Biden’s transition team, told our colleague Yasmeen Abutaleb.

Eric Schmitt, Missouri's attorney general

The vaccine landscape

Among mandate supporters, some businesses had already forged ahead with their own requirements. But others were waiting, hoping for cover from the administration’s rule. Some Republican-led states have measures blocking or limiting vaccine mandates — which the federal rule would have preempted — and more could pass such measures during their legislative sessions this year. 

Businesses and 27 Republican-led states asked the courts to halt the workplace rules, arguing they amounted to vast federal overreach. The Supreme Court’s decision leaves in place a web of varying vaccine mandates, where competing businesses may have different policies. 

  • “Among large employers there is quite a spectrum of approaches right now, with some (health care, transportation, defense) already implementing a mandate, others (retail, hospitality) deeply uncomfortable with a mandate, and many somewhere in the middle,” James Gelfand, an executive vice president of the ERISA Industry Committee, which represents large employers, wrote in an email.

Jeremy Faust, an emergency room physician at Brigham and Women’s Hospital

But for the health industry…

The dynamic is vastly different. Some health lobbies lauded the decision to keep the mandate, saying it’s one of the most effective tools to blunt the virus. But others expressed deep concern it could exacerbate labor shortages amid an already strained health-care system. 

“We respect the ruling of the U.S. Supreme Court but remain concerned that the repercussions of the vaccine mandate among health care workers will be devastating to an already decimated long term care workforce,” the American Health Care Association, the major nursing home trade group, said in a statement. 

  • On average, roughly 80 percent of staff per facility are vaccinated, according to data from the Centers for Medicare and Medicaid Services (CMS).

The vaccine requirement for health workers had been blocked in roughly half the states. Now, CMS will implement the policy across the country, and parts of the rule had been slated to go into effect Jan. 27. 

  • That will be fairly seamless for groups like the Association of American Medical Colleges, which say the vast majority of its members have already gone through with a mandate.
  • But it’ll be tougher for facilities that haven’t, such as some hospitals. The American Hospital Association told The Health 202 last week that roughly 40 percent of its members had their own requirements in place before Biden’s rules were issued — and most had kept them. But those in states suing over the rules were wary to move forward with a new requirement.
The breakdown

The rule for large employers: All six of the court’s conservative justices stopped the requirement, arguing Congress hadn’t granted the administration the power to impose such a far-reaching rule.

  • Yesterday’s order doesn’t permanently kill the measure. The justices blocked it while challenges to its legality continue, but many view the ruling as predicting the final outcome, The Post’s Amy Goldstein, Eli Rosenberg and Jacob Bogage note.

The mandate for health workers: Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the court’s liberals to let the policy go into effect, writing that the nation's health department has the ability to require vaccines at facilities receiving federal funds.

White House prescriptions

Biden promises Americans tests and better masks

On Jan. 13, President Biden said his administration will announce a plan to make “high-quality masks available to American people for free." (The Washington Post)

Biden is doubling his order of tests to send for free to Americans and pledging to soon distribute free high quality masks. But the measures — announced in a speech yesterday — may come after the omicron wave has peaked in some big cities.

The new details: The White House ordered 500 million more tests, and plans to have a new website where Americans can request access up and running next week, Yasmeen reports. Officials are expected to provide more details on the website today.

  • “This would have been ideal to have before the omicron surge,” said Amesh Adalja, a senior scholar at the Johns Hopkins Center for Health Security.

The White House will announce its plan for masks next week. Research shows that high-quality masks, like N95s or KN95s, are more protective against transmission of the virus than cloth or surgical masks.

  • “I know we all wish that we could finally be done with wearing masks. I get it. But they are a really important tool to stop the spread,” Biden said.

On the Hill

Critical panel advances Biden’s pick to lead the FDA

The Senate HELP Committee voted 13 to 8 to advance Robert Califf’s nomination to lead the Food and Drug Administration, an agency crucial to the pandemic response, our colleague Katie Shepherd reports.

In favor: Richard Burr (N.C.), the ranking Republican on the committee, was joined by three other Republicans and nine Democrats, including Committee Chair Patty Murray (D-Wash.), in voting in favor of the nomination.

Voting no: As expected, two members of the Democratic caucus — Bernie Sanders (I-Vt.) and Maggie Hassan (D-N.H.) — voted against the nomination. They were joined by six Republicans: Bill Cassidy (La.), Mike Braun (Ind.), Roger Marshall (Kansas), Tim Scott (S.C.), Tommy Tuberville (Ala.) and Jerry Moran (Kansas). Rand Paul (R-Ky.) did not vote

Democrats want the FDA to revisit limits on blood donations from gay and bisexual men

A group of House Democrats are calling on the FDA to ease restrictions on blood donations from gay and bisexual men days after the Red Cross declared its first-ever national blood crisis. Current policy requires men to abstain from sexual activity with other men for 90 days before donating blood, The Hill’s Sarakshi Rai reports.

Oversight and Reform Committee Chair Carolyn Maloney (N.Y.), chair of the subcommittee on civil rights and civil liberties Jamie Raskin (Md.) and Reps. Alexandria Ocasio-Cortez (N.Y.) and Katie Porter (Calif.) wrote a letter to the FDA, saying the current policy “continues to stigmatize gay and bisexual men” and “undermine crucial efforts to ensure an adequate and stable national blood supply.”

Reproductive wars

  • More Democrats are now ranking abortion as a top issue. Thirteen percent of Democrats mentioned reproductive rights as one of their top issues, according to a December poll from The Associated Press-NORC Center for Public Affairs Research. That’s up from less than 1 percent of Democrats last year. The poll asked respondents to volunteer up to five issues that they believed should be priorities for the federal government this year. 

In other health news

  • Surprise billing protections: The Consumer Financial Protection Bureau is reminding debt collectors and credit bureaus that they could face legal liability if they try to collect on medical bills prohibited under federal protections against surprise billing that went into effect this year.
  • Deadline: Americans have through Saturday to sign up for Obamacare plans on Enrollment numbers are high, likely due to generous subsidies passed as part of Biden’s coronavirus relief bill. But those subsidies are set to go away at the end of the year.
  • Moves to watch: Biden has nominated Tricia Neuman to serve on Medicare’s board of trustees. Neuman is a senior vice president at the Kaiser Family Foundation and the director of the foundation’s program on Medicare policy.
  • Dozens of doctors, academics and health experts denounced “personal attacks” against Anthony Fauci in a joint letter yesterday. The letter, whose signatories include Nobel laureates and the leaders of many public health schools, comes just two days after Fauci testified in Congress that political attacks had encouraged threats on his life. The letter praises Fauci and calls the criticism of him “inaccurate, unscientific, ill-founded in the facts and, increasingly, motivated by partisan politics.”

The Post's Dan Diamond:

From our notebook

What you need to know about rapid antigen tests: 

The FDA warned at the end of last month that at-home, rapid antigen tests may be less sensitive to the omicron variant, according to a preliminary lab study. But lab results don't always translate to clinical findings, and experts say we need more data.

We’re just starting to get more real-world results: A small study of 30 individuals, published earlier this month and not yet peer-reviewed, suggested that some omicron cases might be infectious before they were detected by rapid antigen tests. But, in more positive news, a recent study of 700 people at a walk-up testing site found that the commonly-used Abbott BinaxNOW test was able to detect most people with high viral loads. (The study also has not yet been peer-reviewed.)

  • “In terms of rethinking how antigen tests should be used, I think people just need to be more cautious and aware there may be (I don’t think we know for certain yet) a greater risk of false negatives with omicron,” Christopher Brooke, a professor of microbiology at the University of Illinois at Urbana-Champaign, wrote in an email.

It’s all about how you use them. Rapid tests can help break chains of transmission, and they can provide an added layer of protection. Where it becomes a little tricky is when people use them as an excuse to abandon other precautions.

“Access to home testing remains a double-edged sword. It’s not just the test but the behaviors taken in response to the test,” K. C. Coffey, an infectious-disease physician at the University of Maryland School of Medicine, told The Health 202. 

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