Meeting Monday’s first-shot deadline for the federal government’s healthcare worker vaccine mandate is in nursing homes’ best interests, despite a temporary injunction that halted the rule nationwide Tuesday, according to the nation’s largest nursing home association.
A federal judge in Louisiana Tuesday granted a preliminary injunction against the Biden administration’s COVID-19 regulation. It encompasses all states “due to a need for uniformity.” The Centers for Medicare & Medicaid Services’ rule was issued early in November and requires eligible healthcare workers to be fully vaccinated by Jan. 4, 2022. Its first deadline requiring workers to have at least one shot is Monday.
The American Health Care Association/National Center for Assisted Living, which supported the injunction, said in a statement to McKnight’s Long-Term Care News that it’s advising providers to “continue to prepare their policies and procedures and encourage unvaccinated staff to get their first shot by Monday, Dec. 6, so that if the government’s arguments prevail, they will be ready and in compliance.”
“We are advising members that at the moment they are not required to implement the [interim final rule mandate],” a LeadingAge spokeswoman added. “If they already are mandating because they wish to, as many of our members have, or their state requires them to, they should proceed.”
CMS told LeadingAge Wednesday that the pending litigation “limits” the agency’s ability to comment substantively about the proposed mandate or the timing of any further surveyor activity, according to the organization.
What’s more harm?
U.S. District Court Judge Terry A. Doughty said in Tuesday’s ruling that he was granting the temporary injunction, in part, to prevent possible irreversible harm to various personal and business interests.
Harvard Professor David Grabowski, a top long-term care researcher and policy analyst, said Wednesday that the freeze will cause irreparable harm of its own.
“The preliminary injunction to block the mandate for healthcare workers will lead to increased deaths among nursing home residents,” he told McKnight’s on Wednesday. “Greater staff vaccine coverage translates to fewer staff and resident cases and fewer resident deaths. With cases climbing nationally, it is essential that as many nursing home staff as possible are vaccinated.”
He acknowledged that operators are subject to “broad” challenges to staff vaccine acceptance, including strong correlation to county-wide vaccination coverage. But, he said, “mandates would help level the playing field and provide protection for all nursing home residents nationally.”
He said that while he hopes staff vaccinations will rise, he is “skeptical that will happen in markets where staff vaccine coverage is low.”
Grabowski also said he believes a test-out option to vaccination is a non-starter, calling testing “one of the great failures during the pandemic.”
“That’s a pretty hollow requirement,” he said. “That kind of backdoor doesn’t work.”
AHCA/NCAL disagrees on the testing issue and has requested the administration to allow it instead of vaccination in an effort to avert exacerbating “a historic labor crisis.”
“We continue to urge CMS to allow a regular testing option for unvaccinated staff and, therefore, support any legal remedy or CMS action that would bring about this solution,” AHCA/NCAL President and CEO Mark Parkinson said in a statement Wednesday.
Relief while gently nudging along
Many providers view the injunction as an opportunity to prod more vaccination compliance — while also averting potential ruin during the holiday season and beyond.
“We were going to make the Dec. 5 deadline work, like all other providers out there, but we were rushing to meet the deadline and bracing to lose staff right before the holidays possibly,” said Kimberly Green, chief operating officer for Oklahoma-based Diakonos Group. “We were also concerned that we would lose even more staff because once the unvaccinated staff left, their work would pile on top of the vaccinated staff during the holidays.
“We are already seeing PTSD, depression, and tired staff. They can’t take any more,” Green added. “We, like other providers, are running out of options to help them. Even agencies don’t have the staff to assist any longer, even if you are trying to give them a slight reprieve to see their families and have a couple of days off. “
In the meantime, a full-court press to become vaccinated will continue — as will a $1 per hour pay boost for the vaccinated — Green said.
“We fully believe in vaccines and their effectiveness. We want our staff to get the vaccines, but we do not support a vaccine mandate,” she told McKnight’s. “Alienating those dedicated caregivers that have already been working through COVID, COVID restrictions, and working extra during the workforce issues is not only shortsighted but is perilous. You cannot remove a large portion of our workforce and expect us to deliver reasonable, quality care and keep all our doors open.”
She said a big key is countering “urban legends and myths” that can be so counterproductive toward getting reluctant staff vaccinated.
“We must realize that those myths are genuine and fear-inducing to many of our staff,” she said.
“Our biggest challenge has been that social media is seen as ‘truth’ today. The mistruths and made-up stories online from friends and family and ‘friends of friends’ can sway someone quickly. We have to understand and adapt to the culture we live in and that our staff believes in wholeheartedly.”
Winter surge concerns
Proceeding straight ahead is the advice from one policy analyst who has promoted mandates.
“As cases move through the courts, healthcare providers and those who run nursing homes should be vigilant in continuing to do what we know works: vaccination including boosters, masking indoors, and distancing, especially in the face of threats from a new variant, a 25% increase in COVID-19 cases in the two weeks before Thanksgiving, and concerns about the start of an extended winter surge,” said Jill Rosenthal, director of public health policy at the Center for American Progress, a liberal think tank.
“Vaccine requirements continue to be an effective and necessary tool to increase vaccination rates and reduce the ongoing threat of COVID-19,” said Rosenthal, who this summer joined colleagues in urging CMS to institute a vaccine mandate using its rule-making process.
That very mechanism is now at the heart of one temporary injunction.
In an email to McKnight’s, Rosenthal explained that Section 1861(e) of the Social Security Act gives the secretary of the U.S. Department of Health and Human Services the authority to adopt conditions of participation as “necessary in the interest of the health and safety of the individuals who are furnished services in hospitals.”
“The pandemic certainly fits this description,” she said.
The best course of action against COVID-19 outbreaks in facilities remains vaccinations, and providers should still be encouraging workers to get theirs, advises Amy Stewart, MSN, RN, vice president of education and certification strategy for the American Association of Post-Acute Care Nursing.
“Mandates or not, the vaccines reduce the risk of serious illness and hospitalizations, and we need to continue to encourage staff uptake of vaccines,” Stewart told McKnight’s Wednesday. “Educate on the benefits of COVID-19 vaccinations and explain the benefits of a fully vaccinated staff. Use this time to have vaccinated staff share their experience and express the benefits of being fully vaccinated. Explain in greater detail the safety of the vaccines.”
“During outbreaks, staff have expressed fear and anxiety about bringing COVID-19 home to their family, vaccines help limit the risk and ease fear and anxiety,” she added.