Posted on November 18, 2022

A group of 22 states — led by Montana Attorney General Austin Knudsen — have urged the Centers for Medicare & Medicaid Services (CMS) to lift the COVID-19 vaccine mandate for health care workers in the Medicare and Medicaid space.

The 22 states include Montana, Louisiana, Tennessee, Arizona, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Texas, Utah, Virginia and Wyoming.

On Thursday, the cohort of attorneys general filed its petition under the Administrative Procedures Act asking the U.S. Department of Health and Human Services (HHS) and CMS to repeal the mandate, as well as any associated guidance, that requires the staff at health care organizations to be fully vaccinated against COVID-19.

If a vaccine mandate repeal were to move forward, staff at Medicare-certified home health agencies would be impacted.

In the petition, the attorney generals stated that vaccine mandates “significantly limited” many patients’ access to necessary medical care services.

The petition also stated that the mandates decreased employment options for health care workers, “forcing them to choose vaccination over unemployment.”

“Every employer is struggling to fill its ranks, so I’m not sure it’s fair to blame staffing shortages in CMS-covered facilities on this vaccine mandate,” Martha Boyd, vice chair of the labor and employment practice group at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, told Home Health Care News.

Boyd noted that these staffing challenges might be a function of states that have enacted bans against vaccine mandates.

“People can leave the covered facility that requires the vaccine, and go to another health care job, say in a doctor’s office, where they cannot impose the vaccine mandate because it’s unlawful under state law,” she said. “This is a problem that has been sort of created by these state vaccine mandate bans.”

The National Association for Home Care & Hospice (NAHC) believes that there would be both upsides and downsides to lifting the vaccine mandate.

“[The] upside — may slightly increase the availability of staff,” NAHC President William A. Dombi told HHCN in an email. “Downsides – may increase unwillingness of patients to let home care staff into their homes; may increase absenteeism due to staff contracting covid.”

This isn’t the first time the vaccine mandate has faced opposition.

In January, the Supreme Court voted 5-4 to uphold the CMS mandate and lifted two injunctions which attempted to block it.

Plus, last month, the Supreme Court rejected an appeal from attorneys general in 10 states. They wanted the court to review the legality of the mandate.

The difference this time is the strategy being used to repeal the mandate, according to Boyd.

“I think this really is a different process,” she said. “They’re trying to do this through the administrative agencies directly, rather than through litigation. This is an altogether different route.”

Ultimately, NAHC believes that there isn’t a high chance that the vaccine mandate will be removed.

“[It’s] not likely with this Administration or the new Congress, but we would expect to see it raised in the House and Senate,” Dombi said.

Source: Home Health Care News