Nursing home operators were not too surprised by the Supreme Court’s decision to allow the Biden administration’s Centers for Medicare & Medicaid Services (CMS) vaccine mandate to stand, but remain anxious about how the nationwide implementation of the rule may intensify an industry-wide staffing crisis.
The high court sank a separate order involving the Occupational Safety and Health Administration’s (OSHA) vaccine rule. One glaring difference between the two regulations, which operators were quick to point out, involves testing.
OSHA’s mandate offered a test-out option for the 84 million workers it would have affected, for businesses with 100 or more employees. Health care workers, under the CMS mandate, have no such option.
SCOTUS heard arguments Jan. 7 on the constitutionality of the CMS and OSHA vaccine requirements. The CMS rule affects 10 million health care workers.
Cases challenging the legality of both mandates were heard by the conservative-majority high court after the government agencies appealed lower court decisions.
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.
In its per curiam order issued on Thursday the high court, ruling 5-4, granted the federal government’s request to stay, or pause, the lower court injunctions.
“Ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm,” the opinion stated.
CMS Administrator Chiquita Brooks-LaSure said in a statement that she was “extremely pleased” with the Supreme Court’s decision to stay the court injunctions, recognizing CMS’ authority to set consistent vaccination standards for health care workers.
“CMS is already implementing its health care worker vaccination rule in 25 states and territories that were not covered by preliminary injunctions,” noted Brooks-LaSure. “Today’s decision will enable us to fully implement this rule, and we look forward to working with health care providers and their workers to protect patients. We will continue our extensive outreach and assistance efforts encouraging individuals working in health care to get vaccinated.”
Indiana-based operator Golden LivingCenters has seen a 20% jump in staff vaccination since CMS first issued the rule in August. Leadership did not mandate the vaccine internally, instead “strongly encouraging” staff to get their COVID shots, Golden Living President Wesley Rogers said.
“It only presents a greater challenge for the staffing crisis that we’re dealing with in health care right now,” Rogers told Skilled Nursing News. “We felt like it was an overreach by the government to put that mandate forward. We’re all trying to, you know, fight this invisible monster and I think I do believe that [CMS is] trying to do the absolute best that they can to help support us as a country to get through this together.”
He expects Golden Living to lose less than 5% of its staff to the vaccine mandate; the 23-facility operator currently has 74% of its 2,000-plus staff vaccinated.
While Idaho-based Cascadia Healthcare also experienced a jump in staff vaccination rates since the fall, up to 73% from 66%, there’s still disappointment over the lack of a test-out option, Steve LaForte, director of corporate affairs and general counsel, told SNN.
“Having that in the OSHA [mandate] and not putting it in ours when you can ensure you know, the safety just as easily, is disappointing,” said LaForte. “It remains disappointing that CMS focuses on regulation without focusing on how it’s going to affect practical care delivery. What I mean by that is the staffing crisis that already exists and how this is going to exacerbate it.”
Cascadia operates 26 facilities across six states.
Golden Living and Cascadia fall below the national average of nursing home staff vaccination rates at 80.3%, according to CMS data.
CMS, OSHA Decisions ‘More or Less’ Expected
Health care litigators and other legal experts expected it would be much easier to stay the previously ordered lower court injunctions, compared to those made concerning the OSHA rule.
Dorit Reiss, law professor at UC Hastings in San Francisco, said the decision is “more or less” what the legal community expected would occur. Reiss has expertise in health care and vaccine law and policy.
“The statute allows the [CMS] secretary to regulate … facilities which get federal money from Medicaid and Medicare,” added Reiss. “The federal government hasn’t made an arbitrary and capricious decision. I think it’s reasonable, I think it’s solid.”
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett were among the dissent and expressed skepticism that the government’s “hodgepodge of provisions” warrants a national vaccine mandate.
“These cases are not about the efficacy or importance of COVID-19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo,” Justice Thomas wrote in the dissent. “Because the government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal.”
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.
The American Health Care Association (AHCA) and non-profit aging service organization LeadingAge also weighed in on the SCOTUS ruling – some voicing concern over staffing ramifications.
“Caregivers in vaccine hesitant communities may walk off the job because of this policy, further threatening access to care for thousands of our nation’s seniors,” Mark Parkinson, president and CEO of AHCA, said in a statement. “We continue to ask that CMS and state surveyors show leniency during this critical time as well as consider a regular testing option for unvaccinated staff members to prevent worsening staff shortages.”
Parkinson said the industry has made “considerable progress” in getting staff vaccinated, but misinformation has “sowed doubt and concern” among frontline staff. The organization urged the Biden administration to work together to address the root cause of vaccine hesitancy instead of penalizing providers trying to do just that.
Many of LeadingAge’s members implemented in-house vaccine mandates prior to the federal requirement.
“While mandates can sometimes make it harder for employers to keep or find qualified workers – especially as Omicron surges and workforce challenges are growing – we encourage all members, regardless of care setting or community type, to ensure staff get vaccinated,” Katie Smith Sloan, president and CEO of LeadingAge, said in a statement.
Companies featured in this article:
Centers for Medicare & Medicaid Services, CMS, Occupational Safety and Health Administration
