Can a Mississippi community college nursing program require students to get the COVID-19 vaccine?

Subject

COVID-19 Vaccine Requirement at a Public Community College Nursing Program

Recipient

The Honorable Steve Hopkins, Mississippi State Representative

Plain-English summary

Mississippi's House Bill 1509, passed in 2022 and codified in part at Section 41-23-49, makes it an unlawful discriminatory practice for state institutions, public community colleges, counties, municipalities, and other political subdivisions to refuse, withhold, or deny "educational opportunities" based on a person's COVID-19 vaccination status or the absence of an immunity passport. Representative Hopkins asked whether that prohibition reaches a community college nursing program. The AG's answer is yes, generally. A nursing program is part of the college's educational program, so a blanket policy denying enrollment based on COVID-19 vaccine status would be unlawful.

There is a wrinkle. Section 2 of HB 1509 carves out "health care facilities" that are subject to vaccination requirements from the Centers for Medicare and Medicaid Services or the CDC. Many nursing programs include clinical rotations at hospitals and other CMS-certified providers, and those providers historically had their own vaccine rules. The AG would not say whether a particular clinical site qualifies for the exemption, calling that a mixed question of fact and law outside its opinion authority. The opinion also notes the Biden administration announced on May 1, 2023, the start of the wind-down of CMS-certified facility vaccine requirements, suggesting the practical scope of the exemption was narrowing as of the opinion date.

What this means for you

Community college presidents and academic deans

Under this opinion, HB 1509 § 1(2)(a) generally prohibits a public community college from enacting and enforcing any blanket regulation that denies a student educational opportunities based on COVID-19 vaccination status, and the AG says that includes a community college nursing program. The AG adds that the clinical-instruction portion "may implicate the exemption under Section 2" for a health care facility subject to CMS or CDC requirements, but whether a given site qualifies is a mixed question of fact and law it declined to answer.

Nursing program directors and clinical coordinators

The opinion distinguishes the college's own rules, which are constrained by § 1(2)(a), from the clinical-instruction setting, which "may implicate the exemption under Section 2" where compliance with HB 1509 would violate CMS or CDC regulations or guidance. The AG did not decide whether any particular clinical site qualifies for that exemption, and it noted that, as of the opinion's date, the federal CMS-certified-facility vaccine requirements were being wound down.

Nursing students

Under this opinion, a public community college generally cannot deny you educational opportunities, including in a nursing program, based on your COVID-19 vaccination status. The AG notes a possible exception for clinical instruction at a health care facility subject to CMS or CDC requirements, but it did not decide whether any specific site qualifies.

Legislators and policy advocates

The AG declined to decide what counts as a qualifying "health care facility" under Section 2 of HB 1509, treating it as a mixed question of fact and law. The opinion does not recommend any legislative change.

Citizens and journalists

The opinion reads HB 1509 to bar public community colleges from blanket COVID-19 vaccine mandates that deny educational opportunities, while leaving open whether clinical-site placements fall within the Section 2 health-care-facility exemption. It also notes the federal CMS vaccine requirements were being wound down as of May 2023.

Common questions

Who does HB 1509 § 1(2)(a) apply to?
By its terms, a state agency, public official, state institution of higher learning, public community or junior college, county, municipality, or other political subdivision of the state. The opinion analyzes a public community college nursing program.

Can a community college require COVID-19 vaccination just for nursing students?
A blanket nursing-program-only mandate is still a denial of an educational opportunity based on vaccination status, and that is what HB 1509 prohibits. The exemption is for specific health-care-facility placements, not for the program as a whole.

What if a clinical site requires the vaccine?
That clinical site's requirement is what the exemption is about. The AG did not decide whether any particular site qualifies, but in principle a CMS-certified hospital with its own vaccination rule could fall within Section 2. Students assigned to that site may face a vaccine requirement traceable to the site's federal compliance posture.

What happened to the federal CMS healthcare facility vaccine rule?
The opinion cites the May 1, 2023 White House announcement that the administration would "start the process to end" CMS-certified facility vaccine requirements, with the public health emergency itself ending May 11, 2023. The on-the-ground status of CMS vaccine rules has continued to evolve since.

What does "immunity passport" mean in the statute?
The opinion does not define the term. Section 1(2)(a) treats denying covered opportunities based on a person's COVID-19 vaccination status "or whether the person has an immunity passport" as an unlawful discriminatory practice.

Does the opinion explain how the prohibition is enforced?
No. HB 1509 § 1(2)(a) labels the conduct an "unlawful discriminatory practice," but the opinion addresses only whether the prohibition reaches a community college nursing program; it does not discuss enforcement mechanisms or remedies.

Background and statutory framework

HB 1509 was enacted by the 2022 Mississippi Legislature in response to broad pandemic-era vaccination mandates. Section 1(2)(a), codified in part at Miss. Code Ann. § 41-23-49, makes it an unlawful discriminatory practice for listed public entities to "refuse, withhold from, or deny to a person any local or state services, goods, facilities, advantages, privileges, licensing, educational opportunities, health care access, or employment opportunities" based on COVID-19 vaccination status or the absence of an immunity passport.

Section 2 of HB 1509 creates an exemption: "[a] health care facility is exempt from compliance with this act during any period of time that compliance with this act would result in a violation of regulations or guidance issued by the Centers for Medicare and Medicaid Services or the Centers for Disease Control and Prevention." The AG identifies the clinical-instruction setting as where that exemption may come into play.

The AG noted, citing its earlier Barton opinion (May 17, 2021), that the Office does not opine on mixed questions of fact and law. Whether a particular clinical instruction site is a "health care facility" that triggers the Section 2 exemption is exactly that kind of question, so the opinion declined to answer it.

Citations

• Miss. Code Ann. § 41-23-49 (HB 1509 § 1(2)(a) codified, prohibiting denial of educational and other opportunities based on COVID-19 vaccination status)
• HB 1509 § 2 (health care facility exemption tied to CMS/CDC regulations or guidance)
• MS AG Op., Barton (May 17, 2021) (AG does not opine on mixed questions of fact and law)
• White House announcement, May 1, 2023, ending CMS-certified facility vaccine requirements

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/S.Hopkins-May-9-2023-COVID-19-Vaccine-Requirement.pdf

Original opinion text

May 9, 2023
The Honorable Steve Hopkins
Mississippi State Representative
Post Office Box 1018
Jackson, Mississippi 39215-1018
Re:

COVID-19 Vaccine Requirement

Dear Representative Hopkins:
The Office of the Attorney General has received your request for an official opinion.

Question Presented
Does House Bill 1509 ("H.B. 1509"), as enacted by the Mississippi Legislature in the 2022 Regular
Session, prohibit a public community college's nursing program from requiring its students to have
the COVID-19 vaccine?
Brief Response
Section 1(2)(a) of H.B. 1509 prohibits public community colleges from refusing, withholding, or
denying a student any local or state educational opportunities based on the student's COVID-19
vaccination status. Whether a public community college's nursing program or portion thereof
takes place at a qualified "health care facility" that is exempt from the prohibition set forth in
Section 1(2)(a) is a mixed question of fact and law upon which we are unable to officially opine.
Applicable Law and Discussion
Section 1(2)(a) of H.B. 1509, codified in part in Mississippi Code Annotated Section 41-23-49,
provides:
(2) Except as provided in subsection (3) of this section, it is an unlawful
discriminatory practice for:
(a) A state agency, public official, state institution of higher learning, public
community or junior college, county, municipality or other political subdivision
of the state to refuse, withhold from, or deny to a person any local or state
services, goods, facilities, advantages, privileges, licensing, educational
opportunities, health care access, or employment opportunities based on the
person's COVID-19 vaccination status or whether the person has an immunity
passport.
(Emphasis added).
It is the opinion of this office that H.B. 1509 generally prohibits a public community college from
enacting and enforcing any blanket regulation that refuses, withholds, or denies a student any local
or state educational opportunities based upon the student's COVID-19 vaccination status. This
would include a community college nursing program.
However, Section 2 of H.B. 1509 provides that "[a] health care facility is exempt from compliance
with this act during any period of time that compliance with this act would result in a violation of
regulations or guidance issued by the Centers for Medicare and Medicaid Services or the Centers
for Disease Control and Prevention." We note at the outset that on May 11, 2023, the
Administration ended the public health emergency under which most of its vaccine requirements
were initiated. According to the White House announcement on May 1, 2023, "HHS and DHS
announced today that they will start the process to end their vaccination requirements for Head
Start educators, CMS-certified healthcare facilities, and certain noncitizens at the land border."
While the community college's nursing program would be included under Section 1(2)(a) of H.B.
1509, the setting of the clinical instruction portion of the program may implicate the exemption
under Section 2. However, the language of the exemption is contingent on compliance with
Centers for Medicare and Medicaid Services regulations or guidance. Ultimately, whether the
program's nursing instruction or a portion thereof takes place at a "health care facility" that is
exempt under Section 2 is a mixed question of fact and law upon which this office may not
officially opine. MS AG Op., Barton at *2 n.2 (May 17, 2021) (identifying mixed questions of fact
and law as questions that cannot be addressed by official opinion).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General