On Feb. 9, 2022, the Centers for Medicare & Medicaid Services sent a memo to state survey agency directors, asking state departments of public health to properly survey for certification requirements. Otherwise, the states would suffer the consequences of a potential reduction in federal funding for failing to adequately survey facilities.
The memo was spurred by rumblings among certain states that were against CMS’ mandatory COVID-19 vaccination rule, which was recently upheld by the U.S. Supreme Court, with a couple twists of drama.
In the face of the Supreme Court decision, some surveying agencies are reportedly quietly “whispering” that they will not wholeheartedly tag facilities that aren’t meeting the CMS vaccine mandate requirements.
But good for CMS. Some folks just can’t take a loss. States seeking to overturn the CMS vaccine mandate lost their legal appeal all the way up to the U.S. Supreme Court. As such, the rule is valid and effective, and is part of the federal certification requirements for the federal programs that nursing homes participate in.
What’s more, the mandate need not be political. CMS is only trying to effectuate proper infection control for our country’s nursing homes, and states should follow the rule, especially after the Supreme Court upheld it.
What is interesting about this development is that before COVID-19, no nursing home or state public health agency would have ever questioned CMS infection control guidance or rules.
For example, look at years of battling infections in nursing homes, such as MRSA. What about MRSA? Nursing homes have followed CMS guidelines and mandates regarding infection control for those diseases. Have nursing homes, or other states questioned those infection control efforts before? No. To do so would put residents in danger. So why are states and politicians questioning CMS infection control efforts now, especially when the highest court in the land has upheld the rule in the face of challenges?
A majority of physicians support masks in nursing homes. Likewise, physicians support mandatory vaccination to help prevent COVID-19 in nursing homes. Shouldn’t that be the end of the discussion? After all, nursing homes are in the business of protecting and caring for the most elderly and infirm residents. Why not follow the advice of physicians and take every precaution to protect them, as nursing homes have done for more than 100 years?
In the end, there does not seem to be any reason why state survey agencies should not enforce the vaccine mandate as a proper (and now legal) infection control measure — a measure that CMS has imposed along with a myriad of other infection control measures for the past several decades.
CMS was right to send the memo, warning that non-compliance could lead to federal funding shortfalls for state survey agencies that aren’t enforcing its vaccine mandate.
Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected].
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