Nursing home operators remain in limbo as the Supreme Court is set to hear arguments Friday on the constitutionality of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate.
Health care litigators and other legal experts expect it will be much easier to repeal the previously ordered lower court injunctions, compared to those made concerning the Occupational Safety and Health Administration (OSHA) rule.
Cases challenging the legality of both the CMS and OSHA vaccine mandates will be heard by the high court Friday, after the government agencies appealed lower court decisions.
SCOTUS is not yet determining whether the vaccine mandate is constitutional, rather, it will decide whether either mandate should stay in place while the cases play out in court.
Three of four CMS-related lawsuits resulted in injunctions temporarily blocking the mandate across 25 states, while a Florida federal judge issued the only ruling allowing the mandate to remain in effect while the case plays out in court.
CMS appealed injunctions in Missouri, Louisiana and Texas federal courts, citing vaccine efficacy and case surges involving ongoing and new COVID variants.
Dorit Reiss, law professor at UC Hastings in San Francisco, said it would be “strange” if the Supreme Court blocks the government agency from assessing and regulating ongoing health care conditions with Congressional oversight. Reiss has expertise in health care and vaccine law and policy.
“In some ways, the CMS mandate is actually the easier case for the Supreme Court, because CMS conditions stand on a long line of precedent,” Reiss added.
The CMS-issued mandate, originally only focused on nursing homes, requires any health care setting that receives Medicaid and Medicare reimbursement must have staff vaccinated; original guidance requiring 100% vaccination has already passed – the deadline was Jan. 4.
A subsequent memo from the agency gave facilities increased flexibility for operators with widely varying vaccination statistics.
If nursing homes meet the agency’s 80% and 90% staff vaccination rate milestones by 30 and 60 days, respectively, they effectively have 90 days to get into full compliance with the CMS mandate.
“That sounds really promising to me. Having that kind of on-ramp is a nice bridge between where a lot of nursing homes are today and where they need to get to,” said David Grabowski, Harvard health policy professor and researcher. “We all wish [nursing home staff was] 100% vaccinated today, but that’s not realistic, given just the timing of all of this, and the state-to-state variation or even the facility-to-facility variation.”
CMS is currently reporting 79% vaccinated staff and 87.2% residents per facility, via submitted data for the week ending Dec. 19.
It’s unclear when a decision will be made, if at all, following Friday’s hearing, Reiss said.
“It could be within days or it could be within months,” Reiss added. “In theory, what happens after the hearing is the justices do not make an immediate decision. They go to a conference, and then they have a majority vote.”
Mandate arguments focus on government overreach, COVID surge
Arguments in the lower courts – those in favor of injunctions – were centered around the extent of power CMS has to implement the mandate, Reiss said, and criticism of the mandate’s perceived arbitrary and capricious nature. Arguments also noted the absence of a notice and comment period prior to mandate implementation.
“They drew to a large extent on the balance of power between the federal and state governments; that should be the heart of the Supreme Court debate,” explained Reiss. “The argument that the federal government is stepping into a new and broad area without clear Congressional authorization.”
SCOTUS is hearing arguments in what Reiss calls the “shadow docket,” where the court makes decisions on emergency applications without full briefing and argument.
“This is a big extension of federal power, the federal government stepping into areas it hasn’t tested before, and therefore you need specific authorization from Congress. That’s an argument that may have some validity for OSHA,” Reiss said.
CMS, by comparison, “regulates extensively” among health care providers that participate in Medicare and Medicaid.
It’s not that far of a stretch, Reiss added, for CMS to further regulate when there are already programs in place to prevent other infectious diseases with disciplinary measures involving licensure and staff repercussions.
CMS’s argument will rely on the efficacy of vaccines, Grabowski said.
“There’s really good data suggesting when staff are vaccinated, that saves residents lives,” added Grabowski. “Cases are spiking right now in the country and in nursing homes. We know that vaccinated staff, obviously, by extension staff that are fully vaccinated with boosters, it’s going to save lives. The mandate, on scientific grounds, makes a lot of sense.”
Craig Conley, a shareholder at Memphis, Tenn.-based Baker Donelson Bearman Caldwell & Berkowitz is curious to see whether the Supreme Court will make decisions regarding the mandate based on partisan politics.
“What we’ve seen with the other judges in the lower courts, is that the decisions have been made on a partisan basis, with the conservative judges against the mandates and the more liberal judges in favor of the mandates,” said Conley. “Right now we’ve got a 6-3 split in the Supreme Court. The question is going to become, do they follow the law, or do they follow political partisanship?”
Conley refers to the general conservative sway in the Supreme Court currently, with the recent appointments of Justices Amy Coney Barrett and Brett Kavanaugh.
Implications for nursing homes, their staff and future public health emergencies
Legal precedent will change, Reiss said, if the Supreme Court sides with those challenging the CMS vaccine mandate or allows injunctions to stand. With litigation looming over future emergency actions, government agencies will lack autonomy to meet such emergencies in real time.
“If the courts say you need specific Congressional authorization to impose new ground rules during an emergency, they’re basically saying you can’t move in an emergency unless Congress moves, and Congress moves slowly; it’s designed to move slowly,” noted Reiss.
Nursing home workers that have been on the fence about the vaccine will likely make their decision to get vaccinated, or leave the profession, once a definitive ruling on the CMS mandate is made, Grabowski said.
If anything, the mandate and subsequent lawsuits are the latest crises in an industry plagued by deep-rooted challenges for some time.
Operators that don’t have a long-standing positive work culture and trust between worker and employer built over time will be impacted the most, Grabowski noted.
“The current crisis is that we have a lot of staff leaving because they don’t want to get vaccinated, but it’s on top of a larger crisis … we’ve underpaid and exploited these workers for a long time,” added Grabowski.
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