Home Health & Hospice Week

Waiting to see what happens in court is a losing strategy.

There are certainly more legal proceedings to come on Medicare’s vaccination mandate, as well as the Occupational Safety and Health Administration’s vaccination-or-test mandate, but don’t expect them to change your compliance responsibilities.

Summary: Following the U.S. Supreme Court’s Jan. 13 rulings, “the OSHA rule is blocked from implementation and enforcement for the moment,” notes National Association for Home Care & Hospice President William Dombi in analysis of the mandate decisions. And “the CMS rule can full take effect for the moment” (see related story, p. 26). “Both cases return to the lower courts for further adjudication. The Administration has further options available to it,” Dombi explains.

Regarding the OSHA rule, which aimed to require vaccination or testing for employers with more than 100 employees, “I think [it] is dead and not likely to come back,” predicts attorney Robert Markette Jr. with Hall Render in Indianapolis. “The majority seemed very skeptical of OSHA’s claim that it could mandate a vaccine for COVID.”

The “majority views the OSHA rule as more a ‘public health’ action rather than an occupational health one,” NAHC notes in its analysis. “OSHA does not have public health regulatory authority,” it says.

“While the OSHA case has been returned to the lower court for further adjudication, it can be expected that OSHA will ultimately lose on the existing rule,” NAHC predicts. “A new, targeted rule remains possible with the likelihood that new litigation will follow,” however, the trade group suggests.

Regarding the CMS rule, “NAHC expects that CMS will prevail ultimately in the validity of the rule,” it says. “As such, we highly recommend that affected providers move forward to full compliance.”

Stay tuned: Litigation might succeed in narrowing the CMS rule a bit, however.