Biden’s bid for a nursing home vaccine mandate faces obstacles

Biden’s Bid For A Nursing Home Vaccine Mandate Faces Obstacles




About Kerry Dooley Young and Liz Seegert

Kerry Dooley Young is an independent journalist and the AHCJ’s patient safety topic leader. AHCJ’s topic leader on aging is Liz Seegert, who is based in New York City.

NOTE FROM THE EDITOR: This is the second in a series of articles regarding the Biden Administration’s efforts to boost COVID-19 vaccination rates among nursing facility workers. For more information on the first story, go to: The Biden administration is attempting to enforce immunizations for nursing care personnel, putting federal monies at risk.

Despite efforts to present this idea as a done thing, the Biden administration is expected to have hurdles in implementing a planned mandate for COVID-19 immunizations for nursing facility employees.

The Centers for Medicare and Medicaid Services utilized phrasing in a news release on August 18 that made it appear like the mandate had already gone into effect. “By ensuring that all nursing home employees obtain COVID-19 immunizations, this new requirement is a crucial component of preserving the health and safety of nursing home residents and staff,” CMS said.

The requirement, however, does not yet exist.

According to a CMS representative, the agency plans to release an emergency regulation that will take effect when it is published in late September. To enact new regulations, the goal is to use a fast-track process known as an interim final rule with comment.

The Congressional Research Service (CRS) highlighted in a 2013 primer that this method permits presidents to skip the typical period for public discussion necessary before implementing new federal rules in unusual circumstances.

According to CRS’s The Federal Rulemaking Process: An Overview, if public comments on a published interim final rule persuade a federal agency that revisions are warranted, the agency could subsequently publish a final rule reflecting those changes.

Much about CMS’s plan is still unknown, including how and when the agency would monitor compliance rates for staff vaccines at the nation’s more than 15,000 nursing facilities that accept Medicare and Medicaid. According to Lawrence Gostin, a Georgetown University professor and director of the O’Neill Institute for National and Global Health Law, CMS is likely to face legal challenges over the proposed mandate.

In an interview with AHCJ, Gostin said, “What the consequence would be is unclear.” “The president may be acting within his constitutional authority, and Congress may have granted him sufficient discretion, but it’s not a foregone conclusion.”

Even as they support initiatives to increase vaccination rates among nursing home employees, two influential groups have objected to the idea of a vaccine requirement for nursing care personnel.

On August 20, the American Health Care Association and the National Center for Assisted Living (AHCA/NCAL) wrote to CMS, requesting that nursing facilities be exempt from the obligation. Instead, they argue that the rule should apply to all medical facilities that take Medicaid or Medicare funds. They stated that if the regulation resulted in nursing facilities losing staff, residents would suffer as a result.

The AHCA also notified CMS that the proposal “had the potential to disproportionately affect women of color.”

On August 20, the American Health Care Association and the National Center for Assisted Living (AHCA/NCAL) wrote to CMS, requesting that nursing facilities be exempt from the obligation. Instead, they argue that the rule should apply to all medical facilities that take Medicaid or Medicare funds. They stated that if the regulation resulted in nursing facilities losing staff, residents would suffer as a result.

The AHCA also notified CMS that the proposal “had the potential to disproportionately affect women of color.”

The National Association of Health Care Assistants (NAHCA) has also expressed opposition to requiring vaccines for nursing care employees. The association also advocated in support of addressing the underlying issues that have contributed to vaccine apprehension among certified nursing assistants in a statement released on August 12. (CNAs).

In a statement, Lori Porter, NAHCA founder and chief executive, stated, “It’s about time for employers, payers, and governments to acknowledge that marginalizing CNAs for so long has its implications.” “In this case, the ramifications have resulted in a lack of trust in individuals in positions of authority and a lack of clarity about what is best for CNAs and the elderly they serve. Is it any surprise that so many people are hesitant to get vaccinated?”

Joseph Antos, a senior fellow at the conservative think tank American Enterprise Institute, told AHCJ that establishing a mandate may take longer than the Biden administration anticipates. It’s possible that it’ll never take effect.

The Biden administration’s plan may have worked well as a press release, but “it’s a very messy policy to pursue,” according to Antos, who has worked in government health policy at the Department of Health and Human Services and the Congressional Budget Office. He also worked in the White House Office of Management and Budget (OMB), which acts as a gatekeeper for the issuance of new federal rules during presidential administrations.

Medicare and Medicaid clout

Biden plans to use the financial weight of Medicare and Medicaid, the country’s two largest purchasers of medical care, to back the mandate.

In a speech the same day CMS announced the mandate, he said, “With this announcement, I’m leveraging the federal government’s role as a payer of healthcare expenditures to ensure we lessen those risks to our most vulnerable seniors.”

According to CMS projections, Medicare accounted for $799.4 billion (21%) and Medicaid accounted for $613.5 billion (16%) of the $3.8 trillion spent on health care in the United States in 2019.

Presidents who want to make changes to health policy across the country might use this policy instrument to change the regulations governing Medicare and Medicaid payment. One option is to add new requirements to the Medicaid Conditions of Participation and Conditions for Coverage, or the program’s federal safety and quality standards.

The leftist Center for American Progress (CAP) published a research titled “Mandatory COVID-19 Vaccination for Health Care Workers as a Condition of Medicare and Medicaid Participation” on August 6. In May, Neera Tanden, the former president and CEO of CAP, was hired as a special adviser to Biden.

Biden seemed upbeat about plans to make vaccines mandatory for nursing facility workers. He cited his administration’s prior efforts to require federal personnel and on-site contractors to either confirm their immunization status or wear masks on the job and follow testing guidelines. The Veterans Health Administration said last month that its medical staff would be required to get the COVID-19 vaccine.

During his August 18 speech, Biden declared, “Today, I’m introducing a new step.” “You will be forced to get vaccinated if you work in a nursing home and serve people on Medicare or Medicaid.”

But, according to Gostin, who supports enhanced vaccination efforts, Biden does not have the same clear road for nursing home regulations that he does for government programs. In a Washington Post opinion piece published on August 12, Gostin advised that Biden think about how Congress has used transportation monies in the past to push states to raise the minimum drinking age to 21.

“It’s unclear how far Biden can go without congressional approval,” Gostin wrote, “but he might use financing to promote vaccine mandates, particularly in high-risk settings like hospitals, cruise ships, and long-term care facilities.”

In an interview with AHCJ, Gostin indicated that enforcing a mandate on care homes could be problematic.

“Reaching into a state and a corporation operating within that state is always on the precipice of the President’s constitutional authority because state government has primary responsibility for regulating safety in those entities,” Gostin explained.

Biden’s dissatisfaction with the lack of consensus on COVID-19 may have prompted him to try to use federal financial clout to impose a vaccine mandate in nursing facilities.

“As we’ve seen throughout this pandemic, some politicians are attempting to politicize public safety measures — such as children wearing masks at school — for their own political gain,” Biden said in his speech. “Some are even attempting to take power away from local educators by prohibiting the wearing of masks in the classroom. They’re setting a perilous precedent.”

But, as Gostin pointed out, there are definite limits to what Biden can do as president.

“First, let’s debunk a common misconception: the president does not have the authority to declare a national vaccine mandate unilaterally. The federal government’s constitutional jurisdiction is restricted, and states have main public-health powers, including the ability to mandate vaccines. For example, every state now requires kid immunizations as a condition of attending school,” Gostin wrote in an op-ed for the Washington Post.

Many states have regulations in place or are developing laws to encourage or require COVID-19 immunizations for medical professionals. The National Academy of State Health Policy keeps track of state-by-state activities that could help with reporting.

There will also be strong follow-up pieces examining what happens with the Biden administration’s plans for a rule on COVID-19 immunizations for nursing care personnel, as well as senior groups’ reactions to these plans. The initial reactions of these groups have been documented by AHCJ.

If you have any questions about how CMS develops and finalizes rules, please contact Kerry Dooley Young at Patientsafety@healthjournalism.org. I might be able to assist you in locating local perspectives for stories about a prospective rule requiring nursing-home vaccines or other themes.




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