Home Health & Hospice Week

HH, hospice agencies in dire need of definitive guidance, reps stress.

UPDATE: On Jan. 13, the U.S. Supreme Court upheld the Centers for Medicare & Medicaid Services’ vaccination mandate rule and struck down the Occupational Safety and Health Administration’s mandate ETS. For more information, see the upcoming issue of Home Care Week.

If you think you can ignore the vaccination mandates from OSHA and CMS until the Supreme Court rules on them, think again.

“The OSHA ETS is in effect, and the CMS Rule is in effect for the non-Plaintiff States,” points out attorney Matt Wolfe with law firm Baker, Donelson, Bearman, Caldwell & Berkowitz in Durham, North Carolina. For the Centers for Medicare & Medicaid Services rule, that applies to the 25 states and U.S. territories that did not mount legal challenges to the rule (see HCW by AAPC, Vol. XXX, No. 45)

Reminder: The Occupational Safety and Health Administration mandate’s enforcement took effect Jan. 10 and the CMS Interim Final Rule with Comment (IFC) has due dates of Jan. 27 (Phase 1) and Feb. 28 (Phase 2).

Home health and hospice agencies that are in states where the CMS IFC is still on hold shouldn’t just be sitting on their hands, however. “My concern is that hospices in states where enforcement has been enjoined are not doing enough to prepare for compliance,” says attorney Eileen Maguire with law firm Gilliland, Maguire & Harper in Indianapolis.

HHAs and hospices should be ready to hit the ground running in case the U.S. Supreme Court rules that the CMS rule should take effect as scheduled, legal experts agree. And that’s looking somewhat likely after oral arguments on both rules in front of the high court on Fri. Jan. 7.

Multiple justices questioned the validity of the OSHA rule’s broad application. But “the CMS rule did not seem to provoke as much hostility from the Court’s conservatives, with Chief Justice [John] Roberts noting that the regulation is supported by the principle, long-established in American law, that when the government funds a program it is entitled to attached conditions about how the money may be used,” the National Association for Home Care & Hospice notes in its analysis of the proceedings.

“My first thought is that all of the administrative orders are due to be struck down as overbroad and beyond the powers granted to our out-of-control administrative state,” claims attorney Brian Daucher with law firm Sheppard Mullin in Costa Mesa, California. But “who knows where we are headed,” Daucher tells AAPC.

There are a variety of potential outcomes, notes attorney Robert Markette Jr. with Hall Render in Indianapolis. SCOTUS may uphold both rules, leaving the current deadlines for them in place. Or the high court may overturn the OSHA rule while leaving the CMS rule intact, which many observers expect after the Jan. 7 oral arguments. The conservative-leaning court could block both rules as overreach, in which case “this all goes away,” Markette says.

The worst-case scenario will be if the Supreme Court remands the case back to the lower courts for further development, Markette judges. That would mean a long period, perhaps six months, where providers wouldn’t know the status of their compliance obligation.

The timing of the SCOTUS decision is also unknown. Many observers expected a decision before the OSHA ETS’s Jan. 10 enforcement date, but the date came and went with no ruling. NAHC predicts a decision “very soon,” an expectation shared by Markette.

But don’t count on it. “There is no way to predict when the Supreme Court will issue its decisions,” says attorney William Vail with law firm Polsinelli in Atlanta. “I suspect it is acting quickly on that. But does that mean this week or this month or this quarter? I have no idea,” Vail tells AAPC. “I suspect given the urgency of the situation it would be this month, or perhaps sooner,” he adds.

“The biggest challenge for home care with the vaccine and/or testing mandates is the lack of clarity on what action must be taken,” NAHC President William Dombi says in the trade group’s newsletter. “Home care and hospice companies need clear direction from the Supreme Court. The questions and comments by the justices on Friday raise doubts as to whether that guidance is forthcoming. It is apparent that the justices are as divided on these contentious issues as is the Congress and the public,” Dombi judges.

Meanwhile, “with the Supreme Court’s decisions on the emergency appeals still looming, home health and hospice providers are understandably grappling with how to implement in the meantime,” Wolfe observes. (For readiness advice, see story below).

Companies operating in multiple states are additionally facing the challenge of conflicting requirements. “Trying to create a one-size-fits-all policy for a multi-state employer” is futile, Vail judges. “Unfortunately, given the current state of play, there is no uniform law that applies across the country. The CMS Mandate is only in effect in half the states and some states have created laws that either compel or deter mandates,” he points out.