January 7, 2022

As legal challenges loom, here's where CMS' vaccine mandate stands now

Daily Briefing

    The Supreme Court on Friday is scheduled to hear oral arguments on the Biden administration's federal vaccine mandates for large U.S. employers and health care workers. As the legal challenges to these mandates unfold, here's where CMS' mandate for health care workers currently stands.

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    In November, the Occupational Health and Safety Administration (OSHA) and CMS separately published interim final rules requiring Covid-19 vaccines for U.S. employers with 100 or more employers and health care workers in facilities participating in Medicare and Medicaid, respectively.

    Since these rules were first published, both have faced several legal challenges, particularly from businesses, religious institutions, and GOP-led states, and both have been blocked by federal appeals courts in different states. Now, these legal challenges have been appealed all the way to the Supreme Court. On Jan. 7, the Supreme Court is holding a special session to hear oral arguments regarding both OSHA's and CMS' vaccine mandates.

    According to White House press secretary Jen Psaki, the Biden administration is "confident in the legal authority for both policies and the [Justice Department] will vigorously defend both at the Supreme Court."

    Where CMS' vaccine mandate for health care workers currently stands

    According to HealthLeaders Media, CMS' mandate is currently blocked in 25 U.S. states where a legal injunction has prevented its enforcement, but the agency plans to move ahead with the mandate in the remaining states where it is legally allowed. The agency released guidance on the requirement on Dec. 28 to outline the enforcement action thresholds surveyors are supposed to use to determine facilities' compliance, Becker's Hospital Review reports.

    In the states where the mandate is still in place, CMS is requiring all hospitals and other providers that participate in Medicare and Medicaid to have their employees vaccinated with at least one dose of a Covid-19 vaccine by Jan. 27—which will be 30 days after the guidance was released—and two doses by Feb. 28, which will be the first workday 60 days after the guidance was released.

    Facilities that are not 100% compliant with the mandate within 90 days after release of the guidance, which includes both vaccination and exemptions, will potentially face civil fines and termination from Medicare, HealthLeaders Media reports. However, providers will be given opportunities to reach full compliance if they have at least 80% compliance by the first deadline and 90% compliance by the second deadline, as well as a plan to reach full compliance.

    Commenting on CMS' updated mandate guidelines, the American Hospital Association urged the agency to remain flexible in its enforcement of the requirements, which will "help mitigate uncertainty as court challenges to the mandate persist, while enabling hospitals and health systems to navigate workforce challenges without disrupting patient care."

    How CMS' mandate could affect hospitals' staff

    As CMS' mandate is enforced, many hospitals are likely to see their vaccination rates increase, but they will also likely lose some workers to the vaccination requirements—a situation that has been common for many hospitals and health systems with their own vaccine mandates.

    For example, Kaiser Permanente, which employs around 210,000 workers in California and other states, said it achieved a 98% vaccination rate among its staff by Dec. 1 due to its vaccine mandate. In December, the organization terminated 352 employees for not complying with the mandate, and another 1,500 employees face termination in January unless they are fully vaccinated or receive an exemption.

    Similarly, the Mayo Clinic this week said 99% of its 73,000 employees were vaccinated by the organization's Jan. 3 mandate deadline. According to Modern Healthcare, around 1% of the health system's employees will be terminated for failing to comply with the mandate.

    "While Mayo Clinic is saddened to lose valuable employees, we need to take all steps necessary to keep our patients, workforce, visitors, and communities safe," the health system said. "If individuals released from employment choose to get vaccinated at a later date, the opportunity exists for them to apply and return to Mayo Clinic for future job openings."

    So far, responses to vaccine mandates in the health care community have been mixed. For example, some hospital executives, public health authorities, and nursing groups have argued that mandates have made hiring and retaining workers more difficult, but others have said mandates will provide long-term staffing advantages.

    According to Stephen Jones, president and CEO of Inova Health System, the organization's vaccine mandate could help with hiring and recruitment. "We're worried about it being a staffing challenge, maybe, in the short term. I think that it's actually going to be an advantage for us, that people will want to work around others who are vaccinated," he said. (Plunkett, HealthLeaders Media, 1/5; AHA News, 1/4; Bannow, Modern Healthcare, 1/5; Hurley, Reuters, 1/5; Gooch, Becker's Hospital Review, 1/3)

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