Biden administration considers withholding funds and other measures to spur vaccinations

WASHINGTON — The Biden administration is considering using federal regulatory powers and the threat of withholding federal funds from institutions to push more Americans to get vaccinated — a huge potential shift in the fight against the virus and a far more muscular approach to getting shots into arms, according to four people familiar with the deliberations.

The effort could apply to institutions as varied as long-term care facilities, cruise ships and universities, potentially impacting millions of Americans, according to the people, who spoke on the condition of anonymity to discuss sensitive conversations.

The conversations are in the early phases and no firm decisions have been made, the people said. One outside lawyer in touch with the Biden administration on the issue is recommending that the president use federal powers sparingly.

There is a particular focus in the discussions on whether restrictions on Medicare dollars or other federal funds could be used to persuade nursing homes and other long-term care facilities to require employees to be vaccinated, according to one of the people familiar with the talks.

If the Biden administration goes forward with the plans, it would amount to a dramatic escalation in the effort to vaccinate the roughly 90 million Americans who are eligible for shots but who have refused or have been unable to get them.

The discussion at the highest level of government also signals a new phase of potential federal intervention as the White House struggles to control the delta variant of the virus, which is spreading more rapidly than even some of the more dire models predicted.

But such drastic moves are likely to trigger further backlash from many Republican-leaning regions where vaccine hesitancy has been highest, agitating conservatives already skeptical of the Biden administration and its use of federal power. The administration has already said that federal workers and contractors must be vaccinated or wear masks, and the Pentagon is considering similar requirements.

Several experts noted that even if President Joe Biden’s team could force Americans to begin getting shots as soon as this week, it still takes five to six more weeks for mRNA inoculations — which require a second shot — to be fully effective. That means infection rates could keep rising in the short term no matter what steps are taken on vaccinations.

When asked about vaccine mandates after a Thursday event on electric vehicles, President Biden said his administration was looking at its options as he encouraged all Americans to get vaccinated. The White House declined to comment for this story.

The talks within the administration come amid calls from many public health experts for a more aggressive federal approach to vaccinations. The country reported more than 100,000 new coronavirus cases Wednesday, an infection rate on par with early February, before vaccines were widely available. On Thursday, the rolling seven-day daily average of new infections was at 95,000 new cases.

“I think wisely using the federal spending power is absolutely right,” said Lawrence Gostin, who directs Georgetown University’s O’Neill Institute for National and Global Health Law and said he has discussed the idea of using federal funds as an incentive with Biden administration officials.

Gostin said he has suggested the White House use its power judiciously, not by “bludgeoning the private sector” but rather by “starting with high-risk settings with an absolute ethical obligation and legal obligation to keep your workers and your clients safe.”

Other leading experts have publicly floated the idea of using more federal incentives to push for vaccinations as a lever that Biden and his administration could use.

“If you look through history, there are presidents who — even in the absence of legal authority — influence people, you might say,” said Ezekiel Emanuel, a bioethicist at the University of Pennsylvania who recently organized a joint statement from nearly 60 medical groups urging every health facility to require workers to get vaccinated. “We keep referring to this covid thing like it’s an emergency and then we don’t behave like it’s a wartime emergency.”

Biden came into office pledging a “full-scale wartime effort” to beat back the coronavirus. He frequently compares the number of Americans who have died during the pandemic to the country’s war dead, contrasting the more than 615,000 covid deaths over the last 18 months to the number of U.S. soldiers who died in foreign wars over the past century.

But the president has been hesitant to use the full powers available to him to push Americans to get vaccinated, which experts say could include requiring Americans to show they have been vaccinated before flying or before traveling between states.

Still, Biden hinted that he has been exploring the extent of his authority to spur more Americans to take shots. “It’s still a question whether the federal government can mandate the whole country,” Biden said last week in response to a question about whether he supports vaccine mandates. “I don’t know that yet.”

A senior Biden administration official, who spoke on the condition of anonymity earlier this week to speak frankly, said the White House does not believe Biden has the authority to institute a nationwide mandate for vaccinations.

“Will we look at other sectors of the federal government and make determinations about where other, you know, potential mandates or self-attestation programs might be effective? Yes,” said the official. “The president has been very clear that he is going to use every tool available to him, ranging from the bully pulpit to various authorities that he has as president to work to try to get as many people in this country vaccinated as possible.”

About a third of Americans are unvaccinated, according to data from the Kaiser Family Foundation. About a quarter of them reported that they plan to get vaccinated by the end of the year, according to the organization’s July survey, which was released this month.

The survey also found that about 3% of Americans would get vaccinated only if required to do so for school, work or other activities. That’s down from June, when 6% indicated they would get the shot if required.

In recent weeks, the Biden administration has started ramping up its approach to the pandemic, which initially focused on making vaccines available, then offered carrots to entice people and is now using sticks.

The Centers for Disease Control and Prevention reversed its May guidance and recommended wearing masks in large swaths of the country where infections are high. That led to some cities, including Washington, to reinstitute mask mandates.

In its recent decision on the federal workforce, the White House said federal employees and contractors will have to wear masks, socially distance and limit their travel if they refuse to get vaccinated. The military, at Biden’s direction, is considering similar rules.

And the White House is putting together a plan that would require foreign nationals traveling to the United States from all countries to be fully vaccinated.

Other entities have also started to use their authority to mandate vaccinations. In New York, the city government will soon require people to show proof of coronavirus vaccination for indoor activities such as dining and working out at gyms. Massachusetts officials said this week that they are requiring employees and contractors at long-term health facilities to get their first vaccine shot by Sept. 1.

But the federal government’s powers are limited, according to legal experts.

“The federal government can’t directly mandate a vaccine,” said Gostin, the Georgetown law professor. “It can use its spending power to say to a state, ‘You mandate vaccinations. And if you don’t, we’ll withhold certain federal dollars.’ "

The federal government exercised the power of so-called conditional spending by requiring states to increase their drinking age to 21 years old to receive full highway funds, he said.

Gostin noted that there are constraints on the federal government’s power to use funding to push states on policy matters, citing the Supreme Court’s 2012 determination that Congress and the Obama administration went too far in threatening to withhold Medicaid funding if states did not greatly expand health-care coverage.

To stay on safe constitutional footing, Biden would need to use money that is directly related to health and be sure that the totals are “not so extensive an amount that it appeared coercive,” Gostin said.

Some industry leaders and advocates say that federal and state vaccine mandates would be welcome.

“A number of our members are saying they’d love to have either a state mandate or some kind of a government sanction for a mandate,” said Katie Smith Sloan, president and CEO of LeadingAge, a group that represents roughly 5,000 nonprofit aging services providers.

“Staff wants to work in a safe place,” Sloan said. “We’re also hearing pressure from residents and family who want to be sure staff are vaccinated.”

Many health officials also say the Biden administration should rethink its opposition to vaccine passports and play a role in at least setting requirements for them.

“There are ways to do this that are very respectful of privacy and data breaches,” said Tom Frieden, a former CDC director in the Obama administration who has been pushing the idea. “If you established federal vaccine verification and then you required it for an increasing number of things, that would be helpful.”

In France, President Emmanuel Macron is requiring a health pass for citizens to participate in most aspects of civil life - which has prompted a backlash but also has increased vaccination rates.

“The sense of the times is changing,” Frieden said. “There is increasing acceptance of the need for both vaccinations and masks, and there will be increasing acceptance for the need for mandates for both vaccinations and masks.”