‘Hope for the Best, Plan for the Worst’: How Providers Should Plan Around the CMS Mandate Freeze

The initial health care worker vaccine mandate laid out by the Centers for Medicare & Medicaid Services (CMS) was a cause for confusion for some home health providers when it was announced officially in early November. Now that a nationwide injunction has been issued by a federal judge with key deadlines rapidly approaching, that confusion has only intensified.

What’s more likely than the mandate completely going away, however, is an implementation delay.

“I think for the near-term future, until this is worked out in the courts, the mandates are not going to apply,” Angelo Spinola, the co-chair of the home health and home care industry group at the law firm Polsinelli, told Home Health Care News. “Right now, that means that these rules will not go into effect until and unless the injunctions are lifted, and that’s not going to happen until the matter is resolved.”

Advertisement

But that doesn’t mean home health providers should put their employee-vaccination efforts on pause.

The National Association for Home Care & Hospice (NAHC) is urging its provider members to continue on the path to compliance as the waiting game begins.

“We believe it is incumbent upon providers to operate in good faith throughout to achieve compliance,” NAHC said in a statement shared with HHCN. “It remains possible that the District Court rulings will be reversed and that the original compliance deadlines will be held in place. While that outcome is not highly likely, a good faith compliance effort will be the best protection a provider can have against any enforcement action. Should the administration take steps to directly suspend implementation and enforcement of the rule pending the outcome of the litigation, providers can then suspend efforts to comply with the CMS.”

Advertisement

In its statement, NAHC also advised the Biden administration to take steps to provide “needed clarity” to all health care providers subject to the rule, a group of about 76,000 Medicare and Medicaid organizations.

Litigation timeline

The length of the litigation process and any coinciding delays are highly relevant given that the deadline for health care workers to get fully vaccinated is a month away.

Echoing NAHC’s view, home health agencies, for now, would be better off to act as if the mandate is still in place, William Vail, a shareholder at Polsinelli, told HHCN. If anything, they should view the injunction as a “gift,” allowing them more time to comply.

“It leaves employers in kind of a tough spot, but it’s a situation where you’ve got to hope for the best, but plan for the worst,” Vail said. “But the prudent thing to do is go ahead and take all the steps you can to come into compliance with the rules you think are going to be covering you.”

Once a legal outcome becomes final, it’s likely that providers would have an additional 30 days to become in compliance with the mandate – if it even stands.

“Companies should continue to focus on getting as high of a percentage of their workforce vaccinated with the expectation – or the possibility – that these mandates will go into place,” Spinola said. “Even if the mandates ultimately do not [go into effect], they probably are going to need to do this for client and business purposes anyway.”

The matter will not follow a normal litagary timeline, though. The courts are moving very quickly on the issues, which means they should be resolved in mere weeks at the earliest and a few months at the latest, Spinola said.

All three mandates are under fire right now: the Occupational Safety and Health Administration’s (OSHA) large-employer mandate, the federal contractor mandate and the CMS mandate for providers under Conditions of Participations (CoPs).

“I think that it’s probably pretty likely that the district court judges are going to rule that the mandate is not valid,” Spinola said. “Because to issue an injunction like this, it means that the judge believes that there’s a likelihood of success for the moving party, and therefore, they’re not going to put the rule into place until after the decision is made.”

After that, however, an appeal is likely. At that point, new judges – perhaps with different perspectives on the issue – will come into play. Ultimately, the vaccination-mandate battle could end up in the Supreme Court.

What else to consider

The CMS mandate has come under extreme scrutiny almost at the exact same time that a new COVID-19 variant – Omicron – has been detected in the U.S. for the first time.

While the variant was suspected to have already made its way into the U.S. and very well may pose no additional risk to vaccinated individuals, providers are remaining vigilant.

What could be more interesting for providers in states where mandates exist already, however, is what could come about if the CMS mandate is ruled unconstitutional.

That would open up litigation for state mandates, some of which have been in effect for months already.

“Some of the state mandates would likely be in play,” Spinola said. “It’s certainly possible that the outcome of these will lead to more litigation over the state mandates, because it’s the same principles and the same issue.”

Companies featured in this article:

,