Operators are walking a tightrope following a series of injunctions issued against the federal vaccine mandate, developing plans to have staff fully vaccinated by early next year while balancing compliance between the courts and federal agencies.
Two preliminary injunctions were issued this week, most recently by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana on Tuesday night, and another issued on Monday by Missouri U.S. District Court Judge Matthew Schelp. The Minnesota injunction involves 10 states while the Louisiana ruling applies nationally, blocking the vaccine mandate from taking effect.
The Centers for Medicare and Medicaid Services (CMS) published vaccine mandate guidance in early November stating that health care workers in any setting that receive Medicaid or Medicare reimbursement, including nursing homes, must be fully vaccinated by Jan. 4 and have their first dose of the two-dose Moderna and Pfizer vaccines by next week.
Plan compliance
Facilities are tweaking vaccination plans up to the minute, with conflicting guidance coming from federal courts and agencies.
“We’re going to try to come up with a solution that balances the potential, if we need to come into compliance quickly, without affecting our workforce,” said Steve LaForte, director of corporate affairs and general counsel for Eagle, Idaho-based Cascadia Healthcare. Cascadia has 26 facilities in Montana, Arizona, Washington, New Mexico, Oregon and Idaho.
LaForte said Cascadia is looking at “staying the course” in terms of processing vaccinated staff within their organization and processing exemptions, but not terminating or putting employees on a leave of absence who don’t adhere to the injunction or the mandate.
The operator is waiting to “see how things shake out,” LaForte said, adding the changed plan is not set in stone as compliance is changing quickly.
Larger operators like Toledo, Ohio-based ProMedica don’t have a definitive change of plans yet amid the injunctions, with facilities across 28 states to account for, Brian Perry told Skilled Nursing News. Perry serves as vice president of government relations and advocacy at ProMedica.
“Half of those states are saying, don’t do what the federal government tells you to do — you’re put in position to try to determine which law you want to break, because you can’t abide by both, which is a horrendous place for the provider community to be,” said Perry. “That said, we are proceeding through as if the federal mandate will go into place, as proposed, and look to comply with that, at that time.”
Bedrock Healthcare, which operates facilities in Wisconsin, Tennessee, Kentucky and Florida, will proceed with the “spirit” of the CMS mandate, COO Kenneth Nichols said, stopping short at making changes to staff rosters because of the vaccine requirement.
“We’re still continuing education and following the exemption process, either medical or religious exemption requests. We’re going to continue to educate because we’ve identified that as an opportunity with some of our recent surveys,” said Nichols. “In terms of people coming off the schedule on Monday — no, that wouldn’t happen.”
LaForte said he’d like to see a test-out option applied to the CMS rule as a result of the state challenges, to make it consistent with guidance issued by the Occupational Safety and Health Administration (OSHA); the OSHA rule applies to companies with 100 or more employees.
“This really is a public private partnership, and we’re all serving the same stakeholders. We need to be a little bit more on the same page,” said LaForte, referring to the skilled nursing industry. “We need to have some leeway given to us and some elasticity given to us by the government, when they’re doing things that impact us.”
Mandate changes
Aging services advocacy groups hope the lawsuits and resulting injunctions will force CMS to add a test-out option to the mandate, but advise operators to act as if the mandate will go into effect Monday.
“The outcome of the court cases is unclear and people don’t want to be caught unprepared,” Mark Parkinson, president and CEO of the American Health Care Association, told Skilled Nursing News. “If at the eleventh hour the vaccine mandate is reinstated, people have to continue to get prepared … [providers have] to be ready under either scenario.”
That means having policies and procedures in place and operational to adhere to the CMS mandate, and continue encouraging staff to get the vaccine.
AHCA/NCAL “appreciates” the Louisiana-issued injunction, Parkinson said in a statement issued Wednesday, adding the organization is “deeply concerned” the mandate will exacerbate the existing labor crisis among nursing homes.
“We continue to urge CMS to allow a regular testing option for unvaccinated staff and, therefore, support any legal remedy or CMS action that would bring about this solution,” Parkinson added in the statement.
What happens next?
If the injunctions are appealed by CMS, the cases would be heard by federal appeals courts.
Craig Conley, shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz law firm in Tennessee, said he expects the mandate to be upheld in federal court if the government decides to appeal the injunction.
“There’s precedent out there for such vaccine mandates and they’ve been successful from a federal level in the past,” said Conley. “I mean, you got polio, mumps, measles, rubella, all those are mandated for, particularly, for example, with college-aged kids, they have to have a record of all these vaccinations before they are enrolled.”
Another case in Florida reached a different decision than those in Missouri and Louisiana. Judge M. Casey Rodgers said she would not temporarily pause the mandate while the case was being litigated.
Conley anticipates the Florida ruling will take precedence over the national freeze issued by Doughty.
“The CMS mandate stands in Florida, despite this nationwide injunction,” Conley explained. “That court may be somewhat overreaching in that regard, considering it is a district court. The question becomes the non-parties in the Louisiana lawsuit. How can the judge reach that far to non-parties?”
The Louisiana lawsuit claims the government did not go through the “notice and comment” process that is required; the mandate exceeds the government’s authority; that the mandate is “arbitrary and capricious”; and it is contrary to law — specifically that it violates certain provisions in the Social Security Act, among other legal issues.
There is some overlap with the Missouri lawsuit, which alleges the mandate is agency overreach when he issued the injunction; Congressional authorization and a closer look at the “economic and political significance” of the mandate is needed, the ruling said, along with a comment period before implementation.
Another lawsuit challenging the mandate, this time in Texas, has not yet issued a ruling on preliminary injunction.
Companies featured in this article:
Baker Donelson Bearman Caldwell & Berkowitz, Cascadia Healthcare, ProMedica
