Operators are walking a tightrope following a series of injunctions issued against the federal vaccine mandate, making plans for staff to be fully vaccinated by early next year while balancing compliance between courts and federal agencies.
Two preliminary injunctions were issued this week, the most recent 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. Minnesota’s injunction involves 10 states while Louisiana’s ruling applies nationally, blocking the vaccination mandate from coming into effect.
In early November, the Centers for Medicare and Medicaid Services (CMS) released vaccine mandate guidelines indicating that healthcare workers in any facility with Medicaid or Medicare reimbursement, including nursing homes, must be fully immunized by January 4 and receive their first dose of the two-dose Moderna and Pfizer vaccines by next week.
Facilities are tweaking immunization plans down to the minute, with conflicting guidance from courts and federal agencies.
“We will try to find a solution that balances the potential if we are to get into compliance quickly, without affecting our workforce,” said Steve LaForte, director of corporate affairs and general counsel for Eagle, based in Idaho. Cascadia Health. Cascadia has 26 facilities in Montana, Arizona, Washington, New Mexico, Oregon and Idaho.
LaForte said Cascadia plans to “stay the course” in terms of dealing with vaccinated staff within its organization and dealing with exemptions, but not firing or dismissing employees who fail to comply with the injunction or the order. mandate.
The operator is waiting to “see how things move,” LaForte said, adding that the amended plan is not set in stone as compliance changes quickly.
Big carriers like Toledo, Ohio-based ProMedica do not yet have a definitive change of plans amid injunctions, with facilities in 28 states to consider, Brian Perry told Skilled Nursing News. Perry is vice president of government relations and advocacy at ProMedica.
“Half of those states say, don’t do what the federal government tells you to do – you’re put in a position to try to figure out which law you want to break, because you can’t obey both, which is a horrible place for the vendor community, “said Perry.” Having said that, we are proceeding as if the federal mandate is in place, as proposed, and we will seek to comply with it, at that time. “
Bedrock Healthcare, which operates facilities in Wisconsin, Tennessee, Kentucky and Florida, will continue in “the spirit” of CMS’s mandate, said COO Kenneth Nichols, stopping to change staff rosters by due to vaccine requirements.
âWe always continue training and follow the exemption process, whether it is for medical or religious exemption requests. We’re going to continue to educate because we’ve identified this as an opportunity with some of our recent surveys, âNichols said. “As for the people who come off the program on Monday – no, that wouldn’t happen.”
LaForte said he would like to see a testing option applied to the CMS rule following challenges from the state, to make it consistent with guidelines issued by the Occupational Safety and Health Administration (OSHA ); OSHA’s rule applies to businesses with 100 or more employees.
âThis is truly a public-private partnership, and we all serve the same stakeholders. We need to be a little more on the same wavelength, âsaid LaForte, referring to the skilled nursing industry. âWe need to have some leeway and some elasticity on the part of the government when it does things that impact us. “
Aging services advocacy groups hope the lawsuits and resulting injunctions will force CMS to add a testing option to the warrant, but advise operators to act as if the warrant goes into effect on Monday.
âThe outcome of court cases is not clear and people don’t want to be caught off guard,â Mark Parkinson, president and CEO of the American Health Care Association, told Skilled Nursing News. “If by the eleventh hour the vaccine mandate is restored, people must continue to prepare … [providers have] be ready in either scenario.
This means having policies and procedures in place and operational to adhere to the CMS mandate and continue to encourage staff to get vaccinated.
The AHCA / NCAL “appreciates” the injunction issued by Louisiana, Parkinson said in a statement on Wednesday, adding that the organization was “deeply concerned” that the mandate exacerbates the existing work crisis in the homes nursing.
“We continue to urge CMS to allow a regular testing option for unvaccinated staff and, therefore, to support any legal remedies or CMS action that would provide this solution,” Parkinson added in the statement.
What happens next?
If the injunctions are appealed by CMS, the cases would be heard by federal courts of appeal.
Craig Conley, a shareholder in the Baker, Donelson, Bearman, Caldwell & Berkowitz law firm in Tennessee, said he expects the warrant to be upheld in federal court if the government decides to appeal the ‘injunction.
âThere is precedent for such vaccine mandates and they have been successful federally in the past,â Conley said. “I mean, you have polio, mumps, measles, rubella, whatever’s mandatory, especially, for example, with college age kids they have to have a record of all these vaccinations before they go. register. “
Another case in Florida made a different decision than those in Missouri and Louisiana. Judge Mr. Casey Rodgers has said she will not temporarily pause the warrant while the case is being heard.
Conley predicts that Florida’s decision will take precedence over the national freeze issued by Doughty.
“CMS’s mandate is valid in Florida, despite this national injunction,” Conley explained. âThis tribunal may be a little excessive in this regard, given that it is a district court. The issue becomes the non-parties in the Louisiana lawsuit. How can the judge reach the non-parties so far? “
The Louisiana lawsuit claims the government failed to follow the required “notice and comment” process; the mandate goes beyond the authority of government; that the mandate is âarbitrary and capriciousâ; and it is against the law – in particular that it violates certain provisions of the law on social security, among other legal matters.
There is some overlap with the Missouri lawsuit, which alleges the agency’s warrant was overbroad when it issued the injunction; Congressional clearance and further consideration of the “economic and political significance” of the mandate are needed, according to the decision, along with a comment period before implementation.
Another lawsuit challenging the warrant, this time in Texas, has yet to render a decision on the preliminary injunction.