A legal expert believes the Jan. 4 deadline to comply with the federal government’s COVID-19 vaccine mandate for healthcare workers will likely have to be pushed back for some Medicare- and Medicaid-certified providers in response to a federal appeals court decision that revived the regulation in 26 states this week.
“The kind of cautious thing for [the Centers for Medicare & Medicaid Services] to do — and the thing that I’d imagine they will do — will be to reset those deadlines, perhaps push them back by a month,” Brian Dean Abramson, vaccine law expert, author and adjunct professor at Florida International University College of Law, told McKnight’s Long-Term Care News Thursday.
On Wednesday, a three-judge panel from the Fifth Circuit Court of Appeals in New Orleans ruled a lower court did not have the authority to block the CMS mandate nationwide. Instead, it found the court could stop the rule only in the 14 states that had sued. The agency in a statement said it’s reviewing the court’s decisions and is evaluating next steps.
The decision means the mandate remains temporarily blocked in a total of 24 states, including 10 where an injunction was granted in a separate case. Experts say it was just part of a complicated maze of lawsuits and appeals that will be affected by other rulings, and many believe ultimately could be appealed to the U.S. Supreme Court.
“I have said that the enactment and the publication of these regulations by the Biden administration is the first step in the waltz. It’s a waltz that we have seen danced before,” Abramson explained. He noted that employers nationwide will likely see modification to all three federal vaccination mandates in response to pending legal cases.
“It’s the circumstance of a regulation being put forth and then attacked in the courts and then very often modified to deal with specific issues that are raised as objections to it, which there have been in this case,” he added.
Providers, however, regardless of the remaining stays or what state they are in, should be prepared for the “very strong possibility that there will be some kind of effective vaccination mandate imposed upon them that’s connected to the receipt of some kind of federal funding,” Abramson warned.
“I don’t think that any provider should sit still and not think about having a vaccination policy in place,” he said. “The cautious thing to do is probably to, at the very least, be promoting vaccination of employees and encouraging it and perhaps incentivizing it.”
