Providers have, once again, been left in a tenuous position after two federal courts issued orders blocking the previously-issued vaccine mandate from taking effect less than a week before its first effective date.
In November, the Centers for Medicaid and Medicare (“CMS”) advised that all healthcare workers in any setting accepting Medicaid or Medicare reimbursement nationwide would be required to be receive their first dose of the Pfizer or Moderna vaccination against COVID-19 by next week, with their second dose due no later than January 4, 2022. Multiple states immediately filed lawsuits seeking to block the mandate from taking effect, alleging that CMS failed to go through the necessary notice and comment period, and that the mandate violates certain provisions of the Social Security Act, among other legal issues. In late November, the US District Court for the Northern District of Florida refused to do so. However, several additional decisions have come down in the last forty-eight hours blocking the CMS’ mandate from taking effect, just a week before the first dose deadline. On Monday, the US District Court for the Missouri blocked the mandate in ten states: Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, North Dakota, South Dakora, and Wyoming. Late last night, the U.S. District Court for the Western District of Louisiana issued a similar injunction – though its’ impact was much further reaching – nationwide, in fact, impacting more than 10 million health care workers. A similar lawsuit remains pending in Texas.
Subject to these now-conflicting mandates between federal courts and agencies, providers are in a nearly impossible position. While the American Health Care Association (“AHCA”) has expressed appreciation for the judicial rulings amidst concerns about the impact of the mandate on the existing labor shortage among nursing homes, it has also advised providers “to be ready under any scenario”.
Given that CMS’ data indicates 2.4 million health care workers remain unvaccinated, and that both of the recent district court decisions are likely to be appealed within the federal judicial system, Stotler Hayes agrees with the position of the AHCA. We encourage providers to submit formal comments to CMS detailing the potential impact of the mandate on your facility’s staffing and resident care. You can file comments directly using the detailed instructions on our blog post, here. In the meantime, we advise providers to undertake steps to ensure policies and procedures with both the mandate and the injunctions are ready to effectuate in early January.