Biden’s bid for a nursing home vaccine mandate faces obstacles

About Kerry Dooley Young and Liz Seegert

Kerry Dooley Young is an independent journalist and AHCJ's core topic leader on patient safety. Liz Seegert, based in New York City, is AHCJ’s topic leader on aging.

Photo: Wyoming National Guard via Flickr

EDITOR’S NOTE: This is the second in a series about the Biden Administration’s efforts to increase COVID-19 vaccination rates among nursing home workers. For the first story see: Federal funds at stake as Biden Administration seeks to require vaccines for nursing home workers

The Biden administration likely will face challenges in trying to implement a planned mandate for COVID-19 vaccinations for staff of nursing homes, despite efforts to portray this proposal as a done deal.

In an August 18 news release, the Centers for Medicare and Medicaid Services used language that made it appear that the mandate had already taken effect. “This new requirement is a key component of protecting the health and safety of nursing home residents and staff by ensuring that all nursing home staff receive COVID-19 vaccinations,” CMS said.

Yet, the requirement does not yet exist.

A CMS spokesperson told AHCJ that the agency intends to issue an emergency regulation that would become effective upon publication in late September. The plan is to use a fast-track process to implement new regulations — called an interim final rule with comment.

This process allows presidents, under special circumstances, to skip the usual period for public comment required before implementing new federal rules, the Congressional Research Service (CRS) explained in a 2013 primer.

If the public comments offered on a published interim final rule persuade a federal agency that changes are needed, the agency could then publish a final rule reflecting those changes, CRS says in The Federal Rulemaking Process: An Overview.

Much remains to be disclosed about CMS’s plan, including details on how and when the agency would check on compliance rates regarding staff vaccinations at the nation’s more than 15,000 nursing homes that participate in Medicare and Medicaid. CMS likely could face legal challenges about this attempted mandate, said Lawrence Gostin, a Georgetown University professor and director of the O’Neill Institute for National & Global Health Law.

“What the outcome would be is unclear,” Gostin told AHCJ in an interview. “The president may very well be within his constitutional authority that there may be enough discretion that Congress has given him, but it’s not a slam dunk.”

Two influential groups have objected to the idea of a nursing home staff vaccine mandate even as they support efforts to expand vaccination rates in that group.

The American Health Care Association and National Center for Assisted Living (AHCA/NCAL) sent CMS a letter on August 20 asking that nursing homes not be singled out for the mandate. Instead, they said, the mandate should apply widely to all medical organizations that accept Medicaid and Medicare funding. If the mandate resulted in nursing homes losing staff, the residents of these institutions would likely suffer, they argued.

The AHCA also told CMS that the policy “has the potential to impact women of color in a disproportionate way.”

“They make up a significant portion of our staff, and concerns over fertility and lingering distrust of the medical community due to issues such as the Tuskegee experiments, and experienced medical disparities have created significant levels of hesitancy among them,” wrote Mark Parkinson, chief executive officer of the AHCA, in the letter.

Parkinson requested that the Biden administration revamp efforts to overcome concerns about the vaccine through advertising. The association had worked with the CDC on an earlier digital media campaign for which about $1 million was allocated. Parkinson requested a new investment of $25 million to restart and expand this effort.

The National Association of Health Care Assistants (NAHCA) also raised objections to the idea of a vaccine mandate for nursing home staff. In an August 12 statement, the group also argued in favor of addressing the underlying issues that have fostered vaccine hesitancy among certified nursing assistants (CNAs).

“It’s about time for employers, payers, and policymakers to recognize that marginalizing CNAs for so long has its consequences, Lori Porter, NAHCA founder and chief executive said, in a statement. “In this case, those consequences have led to mistrust of those in authority and confusion around what is best for CNAs and for the elders they serve. Is it any wonder that so many are hesitant about getting vaccinated?”

In an interview with AHCJ, Joseph Antos, a senior fellow at the conservative think tank American Enterprise Institute, said it may take longer than the Biden administration expects to put a mandate in place. It might never take effect at all.

The plan outlined by the Biden administration may have worked well as a news release, “but it’s a very messy policy to pursue,” said Antos, who has significant experience in federal health policy, including with the Department of Health and Human Services and the Congressional Budget Office. He also worked in the White House Office of Management and Budget (OMB), which serves as a gatekeeper within presidential administrations for the release of new federal rules.

Medicare and Medicaid clout

Biden intends to leverage the financial clout of Medicare and Medicaid, the dominant purchasers of medical care in the U.S., to support the mandate.

“With this announcement, I’m using the power of the federal government, as a payer of healthcare costs, to ensure we reduce those risks to our most vulnerable seniors,“ he said in a speech the same day CMS announced the mandate.

Of the $3.8 trillion spent on health care in the U.S. in 2019, Medicare accounted for $799.4 billion (21%) and Medicaid accounted for $613.5 (16%), according to CMS estimates.

Presidents seeking to tweak health policy across the country thus have a handy policy tool in changing the rules connected to Medicare and Medicaid payment. One approach is to add new requirements to the Conditions of Participation and Conditions for Coverage for Medicaid and Medicaid, or the program’s federal safety and quality standards.

The liberal Center for American Progress (CAP) on August 6 released a report titled “Mandatory COVID-19 Vaccination for Health Care Workers as a Condition for Medicare and Medicaid Participation.” Neera Tanden, CAP’s former president and chief executive officer, was appointed as a special adviser to Biden in May.

Biden appeared optimistic about plans for creating a vaccine mandate for nursing home staff. He highlighted his administration’s previous efforts to make federal employees and on-site contractors either prove their vaccination status or face requirements to wear masks on the job and comply with testing rules. The Veterans Health Administration last month announced a COVID-19 vaccine requirement for its medical staff.

“Today, I’m announcing a new step,” Biden said during the August 18 speech. “If you work in a nursing home and serve people on Medicare or Medicaid, you will also be required to get vaccinated.”

But Biden doesn’t necessarily have the same clear path for mandates at nursing homes as he does for federal programs, said Gostin, who supports increased efforts to spur vaccinations. In an August 12 opinion article in The Washington Post, for example, Gostin suggested that Biden consider how Congress in the past used highway funds to encourage states to raise the minimum drinking age to 21.

“It’s unclear just how far Biden can go without congressional authorization, but he might use funding to incentivize vaccine mandates, especially in high-risk settings such as hospitals, cruise ships and long-term care facilities,” Gostin wrote.

In the interview with AHCJ, Gostin said seeking to compel nursing homes to comply with a mandate may prove difficult.

“Reaching into a state and into a business operating within that state is always on the edge of the President’s constitutional authority because the primary responsibility for regulating safety in those entities is state government,” Gostin said.

Biden’s frustration with the varied attitudes to addressing COVID-19 may have driven him to try to leverage federal financial clout for a vaccine mandate in nursing homes.

“As we’ve seen throughout this pandemic, some politicians are trying to turn public safety measures — that is, children wearing masks in school — into political disputes for their own political gain,” Biden said in his speech. “Some are even trying to take power away from local educators by banning masks in school. They’re setting a dangerous tone.”

But there are clear limits on what Biden can do as president, Gostin noted.

“Let’s first dispel one persistent myth: The president has no explicit power to unilaterally issue a national vaccine mandate. Federal constitutional authority is limited, while states hold the primary public-health powers, including compelling vaccinations. Every state, for example, currently requires childhood vaccinations as a condition of attending school,” Gostin wrote in the Post op-ed.

Many states have or are working on policies to encourage or mandate COVID-19 vaccinations for people in medical professions. The National Academy of State Health Policy is keeping a handy tally of state-by-state actions, which could aid reporting.

There also will be good follow-up stories assessing what happens with the Biden administration’s plans for a rule on COVID-19 vaccinations for the workers in nursing homes and the reactions to these plans from senior organizations. AHCJ has reported on the initial reactions of these groups.

Please feel free to contact me, Kerry Dooley Young, at Patientsafety@healthjournalism.org if you have questions about how CMS proposes and finalizes rules. I might be able to help you find local angles for stories on a potential rule on a nursing-home vaccine mandate or other topics.

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