The U.S. Supreme Court on Thursday threw its support behind the nationwide COVID-19 vaccine mandate for health care workers, while simultaneously axing a vaccine-or-test rule for large employers.
Last week’s developments shouldn’t shock the in-home care operators that have been following the U.S. Centers for Medicare & Medicaid Services (CMS) and Occupational Safety and Health Administration (OSHA) mandates closely. Yet there are now new considerations providers must be aware of, including key CMS compliance deadlines.
On Friday, for example, CMS released additional guidance stating that home health workers in the 24 states related to the Supreme Court argument will have until March 15 to be fully vaccinated. They have until Feb. 14 to receive their first shot, if receiving the two-dose Pfizer or Moderna regimen.
Texas, however, remains under preliminary injunction.
“Facility staff vaccination rates under 100% constitute noncompliance under the rule,” the guidance reads. “Non-compliance does not necessarily lead to termination, and facilities will generally be given opportunities to return to compliance.”
Generally, the CMS mandate applies to the staff of all providers subject to Medicare and Medicaid Conditions of Participation (CoPs).
“For nursing homes, home health agencies and hospice (beginning in 2022), this includes civil monetary penalties, denial of payment, and – as a final measure – termination of participation from the Medicare and Medicaid programs,” the guidance continues.
For the 25 states that were not part of the preliminary legal challenges, the key deadlines remain Jan. 27 for a first dose of Pfizer or Moderna, then Feb. 28 for full vaccination.
Home health agency staff subject to the mandate include employees, licensed practitioners and broadly any “individuals who provide care.” Students, trainees and volunteers are also covered.
Staff who exclusively provide telehealth or telemedicine services outside of the home are not subject to the CMS mandate, nor are “staff who provide support services” for home health agencies – as long as those workers don’t come into contact with patients.
“CMS is already implementing its health care worker vaccination rule in 25 states and territories that were not covered by preliminary injunctions,” CMS Administrator Chiquita Brooks-LaSure said in a statement. “[This] 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.”
CMS will continue its outreach and assistance efforts to encourage individuals working in health care to get vaccinated, the administrator noted.
Other considerations
As a result of last week’s actions, the Supreme Court technically threw the OSHA and CMS arguments back to the lower courts. In each instance, though, the higher court’s views would stand until it officially considered the case, which wouldn’t happen for quite some time.
“As a practical matter, this spells the end of this [OSHA] rule, as the stay only would be lifted if/when the Supreme Court issues a decision on the merits of the matter,” Polsinelli attorneys Angelo Spinola and Will Vail wrote in a Tuesday memo. “Because the rule only would be effective through May 5, 2022, and it is unlikely the Supreme Court would consider the matter before then, this rule is essentially dead.”
“The Supreme Court’s decision on Jan. 13, 2022, regarding the CMS rule, however, means that it is fully in effect until the matter again comes before the Supreme Court,” they added.
Unlike the OSHA rule, CMS is not giving health care workers a testing opt-out option. The agency is allowing for certain exemptions based on religious beliefs and medical conditions.
While the staff of Medicare-certified home health agencies are clearly covered by the CMS mandate, it gets a little more complicated for providers of home- and community-based services (HCBS).
Medicaid HCBS providers are not directly subject to the mandate if they only deliver those services. If a provider delivers HCBS and home health or hospice services, it can be a different story.
Similarly, if HCBS workers deliver care in a covered facility, then the mandate may still apply.
“If an agency is only providing such services, then it is not covered by the CMS rule simply by virtue of maintaining that line of business,” Spinola and Vail explained. “Note, there may be other reasons that such an agency’s employees would be considered staff of other covered facilities.”
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