A nurse receives the COVID-19 vaccine.
Credit: EvgeniyShkolenko/Getty Images Plus

Many skilled nursing providers continue to pursue full staff vaccination coverage as a federal mandate heads toward the Supreme Court this Friday, their efforts now driven by official enforcement guidance.

A Dec. 28 memo from the Centers for Medicare & Medicaid Services outlines exactly what will be required of providers should the rule remain in effect. It pushes back the date for all workers to have a first shot to Jan. 27 and institutes an enforcement grace period to facilities that don’t initially meet the full vaccination target but have plans in place to do so.

“This new guidance from CMS gives providers helpful clarity on the timeframes and necessary steps to comply with the federal COVID-19 vaccination mandate for healthcare workers — as well as much-need flexibility for providers working hard to reach 100% vaccination rates,” Janine Finck-Boyle, vice president of regulatory affairs for LeadingAge, told McKnight’s Long-Term Care News in an email late last week. “LeadingAge members have been working around the clock to steadily increase vaccination rates among staff and residents. The data proves that being fully vaccinated and boosted minimizes the risk of severe infection, hospitalization, and death if exposed to COVID-19. We continue to strongly urge everyone in long-term care to receive vaccinations and get boosters.”

Finck-Boyle noted it is as important as ever that direct care workers in senior care settings “have all of the layers of protection possible for themselves and their patients.”

Against the backdrop of historic COVID case levels fueled by the omicron variant, the federal government’s right to issue broad vaccine mandates will face its first Supreme Court test. Justices Brett Kavanugh and Samuel Alito scheduled a special session during which the Court will hear oral arguments on both the CMS rule for healthcare workers and another from the Occupational Safety and Health Administration for employers with 100 or more workers.  

Quick Supreme Court decision expected

On the table is whether the Court should lift temporary injunctions that are blocking the rules from taking effect while lower courts consider their merits. The CMS rule remains blocked in 

half of U.S. states.

While some experts had anticipated that CMS would revise its enforcement dates — the final cut-off for full vaccination is listed as Jan. 4 in the published final rule — the new dates and added flexibility included in the agency’s guidance aren’t likely to influence whether the injunctions will be stayed.

If the injunction is lifted, CMS could act to expand its enforcement guidance to surveyors inspecting facilities for compliance in all states.

“It is widely expected in legal circles that the Supreme Court will rule fairly quickly on this, possibly within a matter of a few days,” said Brian Dean Abramson, vaccine law expert, author and adjunct professor at Florida International University College of Law. “The Court’s focus will be on the question of whether CMS has the statutory authority to impose a vaccination requirement at all, no matter what flexibility accompanies its deadlines.”

Among the flexibilities in latest guidance, CMS said any facility with a staff vaccination rate above 80% after Jan. 27 with a specific plan to achieve a 100% rate within 60 days would not be subject to additional enforcement action. At the 60-day mark, a facility above 90% with a plan to achieve a 100% staff vaccination rate within an additional 30 days would not be subject to additional enforcement action.

“Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.),” CMS said.

Some 17 million healthcare workers at more than 77,000 Medicare and Medicaid providers fall under the CMS conditions. While the nationwide staff vaccination rate hit 79%, eight states still had under 70% of workers fully vaccinated as of data collected through Dec. 19.