Nursing home operators remain in limbo as the Supreme Court is due to hear arguments on Friday over the constitutionality of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate.
Healthcare litigators and other legal experts expect it will be much easier to repeal previously ordered lower court injunctions, compared to those made regarding the Occupational Safety and Health Administration rule. (OSHA).
Cases challenging the legality of the CMS and OSHA vaccine warrants will be heard by the High Court on Friday, after government agencies appealed lower court rulings.
SCOTUS is not yet determining whether the vaccine’s mandate is constitutional, instead it will decide whether either mandate should remain in place while cases unfold in court.
Three of four CMS-related lawsuits resulted in injunctions temporarily blocking the warrant in 25 states, while a Florida federal judge issued the only ruling allowing the warrant to remain in effect while the case unfolds in court. .
CMS has appealed the injunctions in federal courts in Missouri, Louisiana and Texas, citing vaccine efficacy and increases in cases involving ongoing and new COVID variants.
Dorit Reiss, professor of law at UC Hastings in San Francisco, said it would be “strange” if the Supreme Court prevented the government agency from assessing and regulating the current health care conditions under surveillance of Congress. Reiss has expertise in healthcare and vaccine law and policy.
“In some ways CMS’s tenure is actually the easiest case for the Supreme Court, as CMS terms are built on a long line of precedent,” Reiss added.
The mandate issued by CMS, originally focused only on nursing homes, requires any healthcare facility with Medicaid and Medicare reimbursement to have its staff vaccinated; the original guidelines requiring 100% vaccination have already passed – the deadline was January 4.
A subsequent memo from the agency gave the facilities increased flexibility for operators with widely varying vaccination statistics.
If nursing homes meet agency staff immunization rate targets of 80% and 90% within 30 and 60 days, respectively, they effectively have 90 days to fully comply with the CMS mandate.
“It looks really promising to me. Having that kind of ramp is a good bridge between where a lot of nursing homes are today and where they need to go, ”said David Grabowski, professor and policy researcher at. health at Harvard. “We all wish [nursing home staff was] 100% vaccinated today, but that’s not realistic given the timing of it all and the variation from state to state or even the variation from facility to facility. “
CMS currently reports 79% staff vaccinated and 87.2% residents per facility, via data submitted for the week ending December 19.
It’s unclear when a decision will be made, if any, after Friday’s hearing, Reiss said.
“It could be days or months,” Reiss added. “In theory, what happens after the hearing is that the judges do not make an immediate decision. They go to a conference and then they have a majority vote.
Mandate arguments focus on government overbreadth and COVID outbreak
Arguments from lower courts – those in favor of injunctions – centered on the extent of power CMS has to implement the mandate, Reiss said, and criticism of the arbitrary and capricious nature of the mandate. Arguments also noted the lack of a notice and comment period before the mandate is implemented.
“They relied to a large extent on the balance of power between the federal government and the state governments; that should be the heart of the Supreme Court debate, ”explained Reiss. “The argument that the federal government is entering a new and vast domain without clear authorization from Congress.”
SCOTUS hears the arguments in what Reiss calls the “shadow case,” where the court makes decisions on emergency requests without a full briefing or argument.
“This is a big extension of federal power, the federal government is getting involved in areas it has not yet tested, so you need specific authorization from Congress. This is an argument that may have some validity for OSHA, ”Reiss said.
CMS, by comparison, “largely regulates” among healthcare providers who participate in Medicare and Medicaid.
It’s not that far away, Reiss added, for CMS to regulate further when programs already exist to prevent other infectious diseases with disciplinary action involving licensure and repercussions on staff.
CMS’s argument will be based on the effectiveness of vaccines, Grabowski said.
“There is very good data to suggest that when staff are vaccinated it saves the lives of residents,” Grabowski added. “Cases are increasing right now in the country and in nursing homes. We know that the staff vaccinated, obviously, by the extension staff who are fully vaccinated with boosters, it’s going to save lives. The mandate, scientifically, makes a lot of sense. “
Craig Conley, shareholder of Memphis, Tennessee-based Baker Donelson Bearman Caldwell & Berkowitz, is curious to see if the Supreme Court will make tenure decisions based on partisan politics.
“What we’ve seen with the other lower court judges is that the decisions were made on a partisan basis, with the judges conservative against the mandates and the judges more liberal in favor of the mandates,” Conley said. “Right now we have a 6-3 division in the Supreme Court. The question will become: do they respect the law or do they follow political partisanship?
Conley refers to the general Conservative influence on the Supreme Court today, with the recent appointments of Justices Amy Coney Barrett and Brett Kavanaugh.
Implications for nursing homes, their staff and future public health emergencies
The legal precedent will change, Reiss said, if the Supreme Court sides with those challenging CMS’s vaccine mandate or allowing injunctions to remain. With litigation threatening future emergency actions, government agencies will lack the autonomy to deal with such emergencies in real time.
“If the courts say you need specific permission from Congress to impose new ground rules in an emergency, they’re basically saying you can’t act in an emergency unless Congress moves. and that Congress move slowly; it’s designed to move slowly, ”noted Reiss.
Nursing home workers who have been on the fence about the vaccine will likely make their decision whether to get the vaccine or leave the profession, once a final decision on CMS’s mandate is made, Grabowski said. .
On the contrary, the tenure and ensuing lawsuits are the latest crises in an industry plagued with deeply ingrained challenges for some time.
Operators who do not have a long-standing positive work culture and worker-employer trust built over time will be the most affected, Grabowski noted.
“The current crisis is that a lot of staff are leaving because they don’t want to be vaccinated, but that’s on top of a larger crisis… we have underpaid and exploited these workers for a long time,” he said. added Grabowski.