Home Health & Hospice Week

Whether you favor or oppose Medicare’s COVID-19 vaccination requirement, knowing what’s happened so far — and what may occur next — will help you prepare.

At press time, two federal courts in Missouri and Louisiana had issued preliminary injunctions against the Centers for Medicare & Medicaid Services’ interim final rule with comment issued on Nov. 5 (see story, p. 346). And a Florida federal court had denied such an injunction request.

The Louisiana decision issued by Trump-appointed judge Terry Doughty echoes a number of points common in anti-vaccination rhetoric. For example, in his 34-page decision, Doughty asks “if boosters are needed six months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?”

And Doughty cites a physician opinion offered by the plaintiff states that says “mandatory COVID-19 vaccines for hospitals do not increase safety for employees or hospital patients.”

Doughty rules that while “this matter will ultimately be decided by a higher court than this one … it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.”

The higher court Doughty refers to will be the U.S. Court of Appeals for the Fifth Circuit, “the same court that stayed enforcement on the OSHA Emergency Temporary Standard (ETS) for many of the same reasons,” note attorneys J. Michael Grubbs, Scott Witlin, and Laura Seng with law firm Barnes & Thornburg in online analysis.

The Biden administration has already appealed the Missouri decision, and is expected to file an appeal shortly for the Louisiana ruling.

“This fast-developing situation now places the fate of the CMS rule in three different appellate courts — the Fifth, Eighth, and Eleventh Circuit courts of appeal — and presumably, eventually in the Supreme Court of the United States,” note attorneys Greg Guidry, Dee Anna Hays, and James M. Paul with law firm Ogletree Deakins in online analysis.

“With further appeals to the U.S. Supreme Court a certainty after the courts of appeals rule, we may not know the ultimate fate of the CMS vaccine mandate pending appeal until Christmas or even the end of 2021,” offers attorney Sean Marotta with law firm Hogan Lovells in a blog post for the American Hospital Association.

Keep in mind: Although the Louisiana and Missouri court rulings “are only preliminary injunctions, they serve as an important indication that if the vaccine mandate is fully tried on the merits, the federal government may lose,” highlight the Barnes & Thornburg attorneys. That would mean no vaccine mandate.

Or CMS may modify the rule, the National Association for Home Care & Hospice points out.

If CMS does win at the Supreme Court level, the rule could be reinstated with new effective dates, experts offer. Or it could be put back in place with the original dates, but observers find that scenario unlikely.

“This issue should — must — be resolved sooner rather than later,” exhorts Washington, D.C.-based healthcare attorney Elizabeth Hogue. “This case should be on a ‘rocket docket,’” she exclaims.

While ideally the “substantive” issues would receive immediate attention and be resolved before the Phase 1 deadline on Dec. 6, they will be decided “surely before Phase 2 becomes effective in early January,” Hogue hopes.

Then again, “it all depends on how diligently the courts work,” notes attorney Will Vail with Polsinelli.

“We hope that there will be expedited review by the courts and the Administration,” NAHC President Bill Dombi tells AAPC.

Note: See the Louisiana ruling at https://storage.courtlistener.com/recap/gov.uscourts.lawd.185837/gov.uscourts.lawd.185837.28.0.pdf.