On Dec. 28, the Centers for Medicare & Medicaid Services (CMS) reversed course and announced that it will be taking steps to enforce the CMS COVID vaccination mandate interim final rule in Wisconsin and 24 other states, but on a modified compliance timeline. Under the new timeline, Phase 1 implementation must be completed by Jan. 27, 2022, and Phase 2 implementation must be completed by Feb. 28, 2022.
Prior to an earlier CMS announcement suspending implementation of the rule pending future federal litigation developments, Phase 1 implementation was Dec. 4, 2021, and Phase 2 implementation was Jan. 4, 2022.
While staff vaccination rates for most WHA members indicate less than 2% of their workforce is being impacted by loss due to vaccine requirements, and even less in direct patient care roles, it appears that nursing home capacity will be substantially impacted due to significantly lower current staff vaccination rates in nursing homes.
“Approximately 600 patients are currently occupying staffed hospital beds waiting, sometimes for months, to be discharged to a nursing home, long-term care or recovery facility,” said WHA President and CEO Eric Borgerding. “Can CMS actually show that the federal mandate will improve the ability of nursing homes to accept patients ready to be discharged from hospitals during the immediate surge? Does CMS think the nursing home industry’s predictions of mass staff departures are a fabrication? If even a fraction of what the nursing homes predict on staff losses comes true, then what, exactly, is CMS’s strategy to address the existing crisis when it gets even worse? These are real issues happening out here in the real world; what is the CMS plan for the consequences of this policy?”
The announcement and implementation timeline currently only applies to the 25 states that have not sued CMS in federal court challenging CMS’s authority to issue the interim final rule. Those cases, brought by state attorney generals, are currently being appealed to the U.S. Supreme Court, with oral arguments scheduled for Jan. 7. A decision from the Supreme Court impacting some or all states could come soon after.
Additionally, CMS released additional guidance and clarification
regarding implementation and enforcement of the interim final rule, including facility-type specific guidance, that can be found in attachments here