A legal challenge to the COVID-19 health care worker vaccination mandate by the Centers for Medicare & Medicaid Services (CMS) will not be heard by the U.S. Supreme Court.
On Oct. 3, the U.S. Supreme Court turned away Missouri v. Biden, the latest appeal in an 11-month series of legal wrangling over a 2021 vaccine mandate for health care workers. In Missouri vs. Biden, a group of attorneys general from 10 states banded together to challenge the vaccine mandate.
The mandate applies to more than 10 million health care workers, including home health and hospice employees, and was imposed by U.S. Department of Health and Human Services Secretary Xavier Becerra in an interim rule on Nov. 4, 2021. Under the mandate, all heath care workers employed by facilities receiving federal funding such as Medicare and Medicaid must be fully vaccinated against COVID-19.
“Since the interim rule was issued in 2021, there have been legal challenges in lower courts in several states and cases have moved through the appeals process as well,” said Kim Skehan, SimiTree Director of Compliance, Regulatory and Quality.
Ten states came together under Missouri vs. Biden to claim the mandate was unconstitutional, did not follow proper rulemaking procedures and disrupted the workforce, particularly in areas with a smaller labor pool. The 8th Circuit Court of Appeals previously declined to hear the challenge. Now the Supreme Court has declined to hear it as well.
The 10 states represented in Missouri vs. Biden were Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
In turning away the appeal this month, many home health leaders believe the Supreme Court signaled its full support of the power of CMS to govern the health and safety of patients.
“The denial of review of the CMS Covid vaccination rule by the Supreme Court is an indication as to the breadth of power that CMS has in regulating providers of care that receive federal funds,” said William Dombi, President of the National Association for Home Care and Hospice.
The U.S. Supreme Court previously upheld the CMS vaccine mandate in January 2022, lifting two lower court injunctions against the mandate. “The mandate states that in order to be eligible for Medicare and Medicaid dollars, a facility must ensure that its employees are vaccinated against COVID-19,” Skehan said. “Failure to comply may lead to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the Medicare or Medicaid programs.”
Religious and medical exemptions to the mandate may apply.
What agencies should do
CMS continues to scrutinize infection prevention and control during the survey process, Skehan said, and providers should continue to focus their efforts on full compliance, including meeting staff vaccination requirements.
Anytime an agency undergoes a survey, whether it’s a routine 36-month survey, a complaint survey, a survey due to the addition of a branch or a survey for any other reason, surveyors are going to look at how well the agency is meeting infection control regulations, including staff vaccinations.
Skehan and other SimiTree consultants recommend agencies prioritize ensuring their patients receive safe care, such as preventing new staff members who are not yet fully vaccinated or those who are not vaccinated due to an allowable exemption from being assigned to high-risk patients.
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