High court backs CMS’ vaccine mandate, but not OSHA’s

by A.J. Plunkett (aplunkett@decisionhealth.com)

Look for CMS and accrediting organizations to start fully enforcing the agency’s recent interim rule requiring all staff at hospitals and other healthcare facilities to be fully vaccinated against COVID-19 after the Supreme Court stayed an injunction that barred implementation.

The injunction was a result of lawsuits that are being considered in lower courts that impact 25 states.

Meanwhile, the court said OSHA’s mandate for large employers to require workers to either be fully vaccinated or face regular mandatory testing for the deadly virus cannot go forward until lawsuits against that interim temporary standard are decided.

The court heard emergency arguments last week on whether either mandate should go forward.

In its stay allowing enforcement of the CMS vaccine requirement, the court noted that safety and protection of patients had long been an accepted role for CMS, that COVID-19 posed a deadly threat, and that the threat was made even worse by a concurrent flu season.

The order noted the states had argued that CMS’ regulatory authority “authorizes the Secretary to impose no more than a list of bureaucratic rules regard­ing the technical administration of Medicare and Medicaid.”

However, said the order, the states also agreed CMS could require such infection control requirements as wearing gloves and sterilizing instruments. “Healthcare facilities that wish to participate in Medicare and Medicaid have al­ways been obligated to satisfy a host of conditions that ad­dress the safe and effective provision of healthcare, not simply sound accounting.”

Associate justices Clarence Thomas and Samuel A. Alito Jr., both dissented.

Meanwhile, the high court ruled that OSHA exceeded its statutory authority. The majority of justices agreed that the states who sued over the vaccine-or-testing mandate would likely prevail and overruled an appeals court that had allowed the OSHA mandate to go forward.

“Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power,’” said the court.

The federal act authorizing OSHA standards “empowers the Secretary to set workplace safety standards, not broad public health measures,” said the court.

Expect CMS as well as the accreditation organizations (AOs) to go quickly forward implementing the vaccine mandate for healthcare.

In a Quality, Safety & Oversight group memo, QSO-22-07-All,  issued December 28, CMS said it was going forward with enforcement in the states that had not challenged the interim rule.

Now all providers face deadlines under CMS’ interim rule. AOs have said they were preparing their own standard requirements to match the CMS requirements.

As the Accreditation & Quality Compliance Center reported earlier, under the interim rule hospitals and other providers who participate in Medicare and Medicaid must have staff at least partially vaccinated within 30 days of the issuance of the memo—January 27—and fully vaccinated within 60 days. Since the 60th day falls on a Saturday, February 26, it will not be implemented until Monday, February 28, the following business day, according to CMS.

While the mandate does allow for staff to be granted certain religious or other exemptions from getting the vaccine, anything less than 100% compliance with one or the other option could result in civil fines followed by termination for nursing homes, home health agencies and hospice, and a potentially the loss of Medicare certification for all other providers.

Hospitals will be notified of non-compliance with the issuance of a CMS Form-2567, which specifies deficiencies.

Providers who can show policies and procedures that have achieved at least 80% compliance and a plan to achieve 100% by the time of the first deadline will be given a chance to reach full compliance, according to CMS. Those who have at least 90% compliance and a plan to reach full compliance by the end of February will also be given a chance to comply.

For a look at how the CMS rule is expected to be implemented by surveyors at hospitals, go to https://www.cms.gov/files/document/qso-22-07-all-attachment-d-hospital.pdf.

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