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

Home Health Care News 
By Andrew Donlan | December 1, 2021
 
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.”
 
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.”
 
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…
  
…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.

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