CMS Vaccine Mandate
Health Law Talk Presented by Chehardy Sherman Williams
+ Full Transcript
Rory Bellina (00:14):
Hello everyone, and welcome to Health Law Talk, presented by Chehardy Sherman Williams. Before we get started, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, and YouTube, linked in the description below. We hope you enjoy this episode.
Conrad Meyer (00:36):
Good day, everybody. This is Conrad Meyer here in the studio today with Roy Bellina and Chris Martin for another episode of Health Law Talk. good morning guys. How y’all doing?
Rory Bellina (00:46):
Morning, Chris. Good
Chris Martin (00:47):
Conrad Meyer (00:48):
All right. So today again, a very interesting topic. Today, we’re looking at the the vaccine mandates, covid vaccine mandates lots of confusion, honestly from clients, from people we’re talking to in terms of what’s out there, what mandates are out there. do you know the federal mandate, the OSHA private mandate? Now we have this CMS mandate where hopefully all of us are gonna clear that up today. Yep. What do y’all think about that, guys?
Rory Bellina (01:14):
Yeah, like, like Con had mentioned last week’s episode was on the private employer mandate. That was kind of part one of this three part series. Today is gonna be on the cms, we’ll call it the CMS Healthcare mm-hmm. Worker Mandate. Just for, for this discussion, and then we’ll wrap this up with the with the federal employees. But before we jump into today’s topic, part two, the cms, CMS healthcare mandate. Mm-hmm. . Chris is gonna give us a little bit of update. It’s only been a week since we record our last one, the private employer, but the courts have been blowing and going on this already in a week, Chris. So, Chris, what’s going on since our last one on the, on the private employer, And just to recap, that is a hundred more employees, and we went into detail in last week’s podcast, so please listen to that. But give us a, a brief snippet if someone didn’t listen to last week’s, what’s the private employer and what’s been going on in the courts in the past
Conrad Meyer (02:00):
Week? Where, where are we now?
Chris Martin (02:01):
So last week we, the Fifth Circuit Federal Court of Appeals had granted a temporary restraining order. Three judge panel, and then briefs were due to have to determine whether their permanent injunction should be implemented. And we got an opinion just the other day from Judge Engelhart former district court judge in the Eastern District. And he wrote a pretty scathing 15 or so page opinion, no 20 page opinion upholding the restraining order and entering a permanent injunction. And at the last line of the, of the order, I’ll just read it, it is further ordered that OSHA take no steps to implement or enforce the mandate until further court order.
Rory Bellina (02:52):
And this one is private employer. So we’re not talking about healthcare workers. We’re talking about the one that we did our episode last week, a hundred or more employees. And we went through the tests. And that’s the one where if you weren’t vaccinated, you would have to wear, you’d have to get weekly testing, you’d have to wear a mask. That one is the one where you’d have to track it, you know, $13,000, I believe it was per violation, per person. so that has been stayed. And then, correct me if I’m wrong, that is now that there was a lottery system, and the sixth Circuit is going to hear this
Chris Martin (03:22):
One. Yes. The Sixth Circuit Court of Appeals in Cincinnati, Ohio will now hear the next step in this process. I think every single federal appeals court had suits pending. They do a lottery system where they literally pick one of the, pick a ball out of a a basket, and the sixth circuit was picked. interestingly, the sixth circuit, from what I understand, is one of the more conservative republican judge courts of appeals. So mm-hmm. , it’ll be interesting to see what they do. And
Rory Bellina (03:58):
If they uphold the Fifth Circuit, then do you predict that this will, that the government will step in and, and challenge us to the Supreme
Chris Martin (04:05):
Court? I think so. I think we’re headed to the US Supreme Court on the OSHA private employer mandate. Yeah,
Conrad Meyer (04:11):
No, no doubt. This is going all the way up.
Rory Bellina (04:12):
So that’s a really great recap of last week’s episode and where that’s stand. And before we get into the details of today’s CMS one, where does this one stand in the courts? Because I know that there’s, I believe there’s a numerous amount of states that are challenging this one
Chris Martin (04:25):
Well, yes, and it has some Louisiana flavor to it, because just recently day before or yesterday or the day before 12 states, 10 states, 10 southern states, 10 Republican states filed suit in federal court in the western district of Louisiana in Monroe. And our own attorney general, Jeff Landry, is gonna be leading the lawsuit to, to have that mandate stayed and eventually, hopefully overturned.
Conrad Meyer (04:54):
This is the CMS mandate, This
Chris Martin (04:55):
Is the CMS mandate that they feel is a exte exceeds CMSs authority, and as they’re seeking court intervention to halt it or overturn
Rory Bellina (05:08):
It. So, as of right now, the CMS one is still active, per se, but we expect these legal challenges going on, though I think, let’s jump right in and, and let’s presume, like we did for last week’s episode, that the, that this one will be in effect. so, but we want to give our listeners kind of a summary of what’s going on, cuz this, this affects the vast majority of, of healthcare providers. So Conrad, you wanna kind of kick it off and, and give us a little bit of, you know, flavor on what, what this is trying to accomplish. And and, and just jump right in.
Conrad Meyer (05:39):
So, so basically the CMS mandate requires that various healthcare workers, extenders, contractors who provide, you know, services in a healthcare setting. And, and when we say healthcare setting, I mean there’s a laundry list of, of different settings that CMS has listed that it, that it will cover. must have the first dose of the two dose FDA approved, or a single dose FDA approved vaccine by December the fifth of, of this year. And they all, they must be fully vaccinated by January 4th, 2022. So and if they’re not in compliance, the facility itself is looking at potentials civil monetary penalties possible exclusion from Medicare and Medicaid. and they’re gonna be doing this through state surveys. So they’re gonna use the local state, like Louisiana Department of Health to help and assist with the surveys of the various facilities to sh to ensure compliance.
Rory Bellina (06:39):
And you mentioned something important that I just wanted to highlight on, you said fully vaccinated by January 4th. I know there was some mm-hmm. , there’s some confusion on what that means. Does that mean that you received the shot by that date, or is it two weeks? I believe the, the policy is that you’re not fully vaccinating until weeks after that last shot. And CMS clarified that, didn’t they? And they say that as long as you have received, because the, the times didn’t work out from when the policy started in it. So, as just for our listeners to be clear, as long as your workers have received the second or the first, if it’s Johnson and Johnson by January 4th, that’s considered in compliance. Right.
Conrad Meyer (07:15):
Because the, the, you need, you had that two week wait post shot for the efficacy to build up. And so the the timeline on the original rule didn’t work out so that it needed some clarification on that. Sure. So you’re correct.
Chris Martin (07:27):
One, one minor point, cuz I think when CMS drafted this rule, somebody didn’t look at the calendar, cuz December the fifth is actually a Sunday.
Rory Bellina (07:37):
Chris Martin (07:38):
So that, that same guidance said, No, we’re gonna do it. That’s now actually on December
Conrad Meyer (07:43):
The sixth. On the Monday. Yeah.
Rory Bellina (07:44):
Gotcha. So who does the supply to that? Let’s start with that, just how we did our last episode. Who does the supply to, and we’ll, we’ll walk through all the details.
Chris Martin (07:53):
You want me to do that? Yeah. So you know, CMS is doing this under their, under their power to set conditions of participation, which has very broad powers
Conrad Meyer (08:05):
Walk people through what that means, cuz a lot of people does not do not understand what conditions of participation is. So give, give, give the listeners some idea what that means.
Chris Martin (08:13):
So in other words, to par to be eligible to bill and collect from Medicare and Medicaid hospitals ambulatory surgery centers and very 15 or 20 other types of providers, Right. Have to meet certain conditions in order to be eligible and, and accepted by Medicare and Medicaid to, to bill them and then to collect. So it’s, we’re talking about billions and billions of dollars a year to, if you’re, if you’re participating in Medicare and Medicaid. Right? So it’s a, it’s, it’s a big financial deal.
Rory Bellina (08:49):
Right. So some of the, some of the list of, you know, you mentioned if you, if you are enrolled in Medicare and, and part of the conditions of participation is that this applies. So let’s talk about covered facilities and some that aren’t covered. I think that’s important because I think the, the goal of this, similar to the private employer mandate of a hundred and more is that CMS wanted to capture as many facilities as they could. So Conor, do you want to kind of explain to our listeners who these card facilities are? Sure. And maybe who they’re not.
Conrad Meyer (09:19):
Yeah, sure. So Rory, you’re looking at, again, this is such a broad brush. You’re looking at the shotgun approach or as the fifth circuit with term Chris, the sledgehammer approach. Right, Right. So ambulatory surgery centers, hospitals, hospices the psychiatric resident treatment facilities, LTCs, long-term care facilities immediate care facilities, home health community mental health centers, outpatient rehab any clinic, any rehab home infusion RHCs or rural health clinics, FQHCs, federal qualified healthcare centers health centers, and s r d or end stage renal disease facilities. So, I mean, a broad, huge brush here from cms.
Rory Bellina (10:02):
And when I look at this list, I try to figure out, okay, what were they trying to accomplish? To me, it looks like they’re trying to capture facilities where there’s a lot of interaction between providers and patients. Is that what you think the intent was here, Chris?
Chris Martin (10:16):
That’s right. That’s right. And so any staff member of any of these listed entities that Conrad just enumerated any staff member on site, no matter what their job is if, if they provide patient care or treatment or come into contact with somebody who does, they’re covered.
Conrad Meyer (10:36):
So imagine, imagine who that is though. Imagine, I mean, when you, when you think about the hospital, cause I know you’ve walked the floors many times, and I have, and we all, we all walk in a facility that’s environmental, dietary food, the, the, the food. Right? The what about the lady in the bookstore? You know, I mean, the gift shop. So, you know, what about the parking attendant who’s, who basically gets cakes to money from someone parking in the parking lot? Those, those people interact with patients all day long. So I, I mean, when, when you start really thinking about it, Chris, I mean, it, it covers a lot.
Chris Martin (11:09):
It is, it’s very
Rory Bellina (11:10):
Broad. And the rules specifically stated, it implies to employees, licensed practitioners, trainees, students, volunteers. And a big one on this one is contractors who provide care, treatment, other services, and who have contact with other individuals who are also covered. So I think that’s that’s, that’s very interesting. You know, they went into the notes and comments and said, some of the vendors that come in that maybe do, you know, periodic service or, or you know, that kind of thing at the, at the facilities don’t, won’t fall into this, but the big goal that CMS looked at for this is how often you’re entering the facility contact with other individuals safety measures and use of the shared commonary. So I think this captures a lot of people. You know, one thing that I thought was very interesting that it didn’t, and I’d love to hear con in your thoughts, is that this doesn’t apply to physician offices.
Conrad Meyer (12:03):
Well, well, that, and, and I was, as you were reading that list, I was, I’ll touch that, but I was thinking about materials management, you know, I mean, those guys just literally drop off truckloads of, of supplies in the back. Are they gonna get hit? You know, the trucking guys mm-hmm. . but as you’re correct, to your point, Rory, on, on the physician side, no, nothing. I think when you’re talking about MO b you know, physicians in that, I mean, I think you can, they’re gonna get hit too.
Rory Bellina (12:28):
Yeah. Because it says that in the guidance that it will provide to, it will apply to people that are provider based, like outpatient departments and PT speech, you know, ot.
Conrad Meyer (12:38):
So remember, so remember how long time ago we, we were, they were all doing this, this, this new deal on out an outpatient on, on the hospital based right? To reach out to the broad swath to capture that, that type of, of revenue stream. Well, now, all that work and all those outreaches to cap, now all those hospital based type practices are now gonna be in this path.
Rory Bellina (12:58):
And, and, and Chris, I think one thing that’s important to note is that if you’re, if you’re a physician office, let’s say you’re, you’re a pediatrician, right? Okay. you’ve got your, your, your solo practice or your group practice you don’t fall under this. But if you’ve got privileges and you, you know, go do well visits on newborns or something like that, then you could fall under it under the hospital where you’ve got privileges, right?
Chris Martin (13:20):
That’s right. That’s right. Because if you to have medical staff privileges at a hospital mm-hmm. , you’re gonna be covered under this mandate.
Rory Bellina (13:28):
So I’m trying to think of people that aren’t included in this. And it, it’s very limited. It, you know, it would be, it would be physicians that don’t have privileges that are strictly in their office. But I mean, if they’ve got privileges to do surgery somewhere, Conrad, they’re included. I mean, it’s, Well, there is
Conrad Meyer (13:42):
Part, well, there is an out though, because I mean, if you re, if you read the rules in faq, it, it was anyone, he, anyone who doesn’t do, what’s it individuals who infrequently provide ad hoc care are non healthcare services, Excuse me, non-health care. What is that? Right? And, and, and, and that’s the gray area. Right. And how do we define that? Of course, it’s not defined. I mean, how do we gonna define that?
Rory Bellina (14:04):
Chris Martin (14:05):
Sure. And it does, you know, telehealth’s been a real hot topic during covid, and it does carve out if you’re doing purely 100% telehealth or telemedicine, which is, you know, you’re talking to a patient remotely, right? Then you can be excluded from this.
Conrad Meyer (14:22):
Well, that makes sense. I mean, I, I, I could see that point. but then this whole gray area of infrequent non-health care related interaction. Sure. What is that?
Rory Bellina (14:31):
So we’re basically, we’re saying, you know, in a traditional hospital, it’s pretty much everyone there Oh yeah. Minus a few provider base that there’s some exclusions. But if you’re on a medical staff, it could be that. So it seems the goal is to capture as many people as possible. I’m gonna go back to our private employer one where we had some exemptions. What are the exemptions here?
Conrad Meyer (14:53):
Well, I mean, back, back to the same thing with the private. You’re gonna have medical exemptions and religious exemptions. And, and, and I, and we’ve gotten calls. I mean, you, you and I have talked about this, Rory. Yes. In the previous episode. We’re getting calls from medical providers who have legitimate, in our eyes, medical exemptions from provi treating physicians who say, Oh, you have a clotting disorder. I’m not recommending you get this vaccine. Oh, you had covid before. You’ve had a positive antibody test. I’m not recommending you get the vaccine. And so I, I, I don’t, you know, I don’t know. There’s been a lot of discussion about how that is presented, how that is reviewed and by who And is there some sort of an appeal process if you don’t like the
Rory Bellina (15:36):
Decision? And Chris, I know you’ve looked into this as well cause you’ve had some questions about it. If a, let’s use the example of a nurse. If a nurse believes that they have a medical exemption, you know, what’s the process that they have to go through?
Chris Martin (15:48):
So interestingly, the CMS mandate goes into some detail about how you, the form and the requirements and the hoops that the employee has to jump through to e to, to even make the request mm-hmm. . So they have to basically get the proverbial note from the doctor. They have to, and the doctor has some very specific requirements. The doctor has to identify the va, the particular vaccine that’s at issue, whether it’s Pfizer, Moderna, or Johnson and Johnson. They then have to specifically say, what’s the medical contraindication for that particular vaccine? And, and, and write out a written statement and opinion as to why this particular employee should be exempted from the requirements based on recognized clinical contraindications. So it’s, it’s not simply fill out a form, say I’m, I’m allergic to blank. Right? Here’s my medical exemption. The employee has to, has to interact with his, his or her provider who is qualified in that area. And if it’s a physician who’s re, who’s submitting the exemption, he can’t, he or she can’t be the qualified provider. They have to use somebody
Conrad Meyer (17:02):
Else. Okay. So let me just, I gotta ask this question, guys. Okay. I just, I’m sorry, I gotta ask it. How much do you guys think politics are gonna play in for the fact for the physicians or providers who are writing these medical exemptions for their provider patients, if you will, If those physicians also have privileges that the facility they’re seek, that their patients are seeking exemption from, what do you think you, do you honestly believe that this is gonna be a transparent process? Or do you think there will be some pushback? You
Rory Bellina (17:30):
Know, my concern and, and from what I’ve already heard, and we had a, we had a client contact us yesterday about this is what’s gonna happen if your, your best scrub tech or your best nurse says, Look, I I need a medical exemption or I’m walking out, you know, and, and, and they go to, they,
Conrad Meyer (17:50):
Well that’s actually, that’s not, that’s not an if that’s actually happening.
Rory Bellina (17:52):
Sure, sure. So, you know, does the doctor provide it? I mean, it has to be very objective criteria that Chris just discussed. But I think that is gonna be a, a concern. And, you know, there’s, there’s gonna be some, there’s gonna be some. But
Conrad Meyer (18:06):
What about, well, what I’m talking about is, is that there’s some panel of individuals or an individual who is going to be receiving these requests and, and as outlined in the, in the CMS thing that you can have the track compliance with this. Anyway, so my question is, is let’s just say that I’m the provider writing the exemption for other providers, yet I am submitting these exemptions to a hospital within which I also have privileges. And let’s say that there’s some people in that hospital that have very strong beliefs. Cause we’ve seen this before. Very strong beliefs on, on pro-vaccine and anti-vaccine, Right? Is there gonna be politics played against me as the physician? Am I gonna get a call from the administrator or the board or someone else saying, Why are you writing all these medical exemptions? Do you think that is gonna play into this? Or do you think it’s just gonna be very transparent? I mean, this is just personal opinion. I’m just asking
Chris Martin (19:02):
You guys. I I, Well, it’s supposed to be transparent. Of
Conrad Meyer (19:06):
Course. I mean, that’s, that’s
Chris Martin (19:06):
The rule. I think, I think I think it’s gonna vary from facility to facility. Agree
Conrad Meyer (19:11):
Chris Martin (19:12):
There. Yeah. And one of the, one of the practical takeaways from, from this vaccine mandate is the recommendation that you use the same person or the same panel to make these decisions so that they’re at least consistent. Great. So, so you don’t
Conrad Meyer (19:31):
Well that’s, well, that’s another thing though. Is there some compliance? And I didn’t see it. I mean, you guys did, have y’all seen anything? Is there something that requires a panel or is it left up to the facilities? Is there an appeal? Because so it’s facilities specific, my understanding.
Chris Martin (19:47):
Yeah, it, there is there, they don’t, they don’t talk about who has to be on the panel or how the decision is made. But they do say it has to be a legitimate, consistent process. Right. And it has to, it has to withhold scrutiny. If that state surveyor comes in and says, I wanna see, you know, patient X’S file and how you made the decision to grant the medical exemption. And
Rory Bellina (20:12):
I thought something that was very interesting that I wanted to bring up is, one of the comments or the FAQs was that one of the criteria should not be revenue from that provider. So let’s say your top neurosurgeon requests a medical exemption and you grant it, but one of your shift workers requests one. And you don’t, you know, if there, if you, if it’s the same exemption and the same request based on the same medical basis, and you grant it to your, you know, your number one neurosurgeon who’s billing and collecting as a huge revenue source for your hospital, but not one of your staff workers, you’re gonna have a problem problem there.
Conrad Meyer (20:47):
So two questions here. Have we just created a new, a new special group into under title seven, Right? Have we just now created that and two do facility as far as from all of us? Cause all of us says a lot of collective experience in various areas in, in, in, in facilities, right? So have we just created a new compliance department within compliance?
Rory Bellina (21:08):
I I, you know, Chris and I went into a huge detail with us last week on the private employer that I, I think this is gonna be a, a full-time job for someone to
Conrad Meyer (21:17):
Track. This is not, Yeah. This is not a part-time thing. And, and I think anybody in compliance would agree that this is gonna, this is gonna sw this is gonna swallow someone up.
Chris Martin (21:25):
Well, and you know, we were, Rory and I were on the phone with an HR director earlier this week or last week. And, and, you know, sh she went from, I don’t know, and I don’t want to know about the vaccination status of my 350 employees to, we told her, You’re not only gonna have to know Oh yeah, you’re gonna have to keep track of it every week. You’re gonna have to, it’s gonna be a dynamic process. You have to ask questions. You’re gonna, you’re gonna now be storing and collect, collecting and storing medical records. Well, the interesting thing for each employee, the
Conrad Meyer (21:58):
Interesting thing now this, this, this CMS exemption different than a little bit than maybe, correct me if I’m wrong, but there’s no test, There’s no al there’s no either or you, either vaccine or nothing. So you can’t go in and say, Oh, I have a negative PCR test this week. Correct. Right.
Chris Martin (22:14):
And that’s one of the, the criticisms in the lawsuits filed challenging the CMS mandate is it’s, it’s jabs or jobs. Correct.
Conrad Meyer (22:25):
I like that. J
Rory Bellina (22:26):
That’s the phrase they use.
Conrad Meyer (22:27):
D And I don’t know if this happened, but this is a, a pivot for a second, but I heard, and I don’t know if this is true, but I I heard that the FDA has sealed the records on, on the covid vaccine testing. Like, in other words, all the tests they run to get full approval. I’ve heard those have been sealed. I, I can’t believe that I have y’all, y’all haven’t heard anything like
Rory Bellina (22:50):
That? I’m unsure, unsure
Conrad Meyer (22:51):
About that. And I just throw that out there. Cause I heard it last night and I’m like, Ah, this doesn’t make any sense. But I checked a lot of this doesn’t make sense.
Chris Martin (22:57):
I checked the FDA website yesterday for, to get a list of FDA approved. Right. Covid back co tests. Diagnostic tests. Okay. And they’re 269.
Conrad Meyer (23:10):
Chris Martin (23:11):
Approved FDA diagnostic tests.
Conrad Meyer (23:14):
Rory Bellina (23:14):
Wow. You know, one other thing, going back to the medical exemptions that I found was very interesting is the, the question was brought up, or the phrase, if you have a medical exemption, is that a permit and exemption? And CMS says, No, it’s not. So if let’s say you’re undergoing some sort of therapeutic treatment chemotherapy, Right? Something like that, that’s a contraindication for this vaccine. Mm-hmm. . But CMS says if you stop that, then you’re, then you’re back into the, as Chris said, the jabs are jobs. So where you could then be required to do it. So going back to the compliance to compliance and hr, that’s gonna be something where, how
Conrad Meyer (23:50):
Do you monitor
Rory Bellina (23:51):
That? Well, that’s, that’s a great question. It’s a great question.
Conrad Meyer (23:54):
Are you like gonna ask your employee on, Well, how’s that chemo going? Can you tell me when you’re rolling off the Yeah. Your next cycle?
Rory Bellina (24:01):
Yeah, I think it, I think it’s gonna be a big, a big monitoring thing. And it, it’s gonna be, you know, comparing to the, the polar employer one. Right. it’s gonna be a lot, a lot to do as opposed to just getting the weekly testing and wearing a mask. This is gonna be,
Conrad Meyer (24:16):
Well imagine tracking that though, Rory. Yeah. Yeah. Another, we all know they have software to track vendor contracts. We’ve seen that mm-hmm. vendor, a vendor contract type of software to manage that. But how do you manage people in terms of that Sure.
Chris Martin (24:29):
People’s, people’s health status on a week to week basis. Yeah.
Rory Bellina (24:32):
Right. No, our second exemption religious exemption. Yes. It, it’s here. Let’s talk a little bit about that. Sure,
Conrad Meyer (24:38):
Sure. again, another, the second exemption is the religious exemption. And it basically, it’s saying to follow E E O C guidance. And, and interestingly, I thought was really good. Was it, it, you can’t look at it. it, it’s, it’s, it’s a strongly held belief. Right. And you have to document it. And the person receiving the exemption can’t interpose their own feelings. Remember? It’s gotta be what is the belief of the person who is submitting the exemption? It’s in their eyes in terms of the strong held belief of it. Is that correct? That’s right. Is how y’all read that. Yeah.
Rory Bellina (25:13):
That, that is how I read that.
Chris Martin (25:14):
The phrase they use is sincerely, sincerely, a sincere, strongly held religious belief, observance or practice.
Rory Bellina (25:22):
And so I switched over and looked at the E E O C guidance on religious exemption, and it said that if the employer reasonably needs more information, the employer and applicant should discuss. And the applicant may need to explain the religious nature of the belief observance and practice. So again, going back to managing this and going back, and I think medical exemptions are probably easier than religious exemptions. I mean, you as, as an administrator or someone in hr, Chris, I mean, they might be calling in people to discuss religion. That’s, Yeah, that’s that. I don’t, I haven’t heard of that before.
Chris Martin (25:56):
Yeah. At least the medical exemption. It’s, it’s a lot more objective. There are clinical contraindications that are listed. True, true religious exemption is, is based on the applicant’s own religious belief. It’s very
Conrad Meyer (26:08):
Subjective. And, you know, and Chris, I think you mentioned earlier, if you Google right religious exemption letters right now, I think you can find what, hundreds, hundreds online. So I mean, I mean, this has already been tackled by some people. But
Chris Martin (26:21):
Yeah, there’s a, there was a lawsuit in New York by the St. Thomas Moore Society, and they’ve posted their, their letters, their religious exemption letters on the internet for
Rory Bellina (26:32):
People to use.
Conrad Meyer (26:33):
For people to use people to use. Right. But that’s more of a gray area because, you know, then you’re really getting into title seven issues. Yeah. if you, if you cross that line. So, so I guess that my, my question is if, if we, if we look at it from the, from the view of the employers or the facilities, right? What’s the bright line here? I mean, we obviously don’t want to get hit with a fine, we obviously don’t wanna be excluded. So do we just have to collect documentation to show this? And what about audio? Do I have to prove this to a survey or now?
Chris Martin (27:04):
Well, I mean, yes, you’re gonna have to, documentation’s gonna be critical. And remember too, these are, these are accommodations. The, the medical exemption is under the Americans with Disabilities Act. Right. So you handle it like a disability claim. Just because somebody may be exempt from having to take the vaccine. The employer could certainly still say, you need to be tested. Right. Weekly, you need to wear a face covering whenever you’re indoors. That’s,
Conrad Meyer (27:38):
That’s a lot of power for somebody, you know. So,
Rory Bellina (27:40):
And those are what the recommended accommodations are. CMS didn’t say what they were gonna be, They basically said, like you said, that the jab or job phrase, you know, get your vaccine or there’s gonna be issues. CMS didn’t say what was be required, like OSHA did. OSHA was very clear and said at least weekly, you know, they went to, they went into every scenario possible on when you had to be tested. If you didn’t show up for testing, what the violations would be, The masking mm-hmm. , where you had to mask what kind of mask. CMS just said that that facilities have to develop a process for implementing additional precautions for staff who are not vaccinated. So that’s gonna include testing, distancing, social control, the goals to minimize that transmission. But that might turn into something where you’ve got, I know most hospitals do this for flu, and I’ve seen some of them do it where they, they put on their badge, you know, 2021 flu. Right. Well, I think it’s gonna, it’s gonna turn into, okay, well, you know, so and so isn’t vaccinated, so they’re not gonna get this special sticker. And it’s gonna be very easy to know who those people are that, that are not vaccinated. And that in kind of invades a little bit more into
Conrad Meyer (28:46):
Their privacy. Think of the cost now that they’re gonna be born by facilities for trying to implement something like this. There’s no guidance. Right. So it’s gonna be facilities specific, like Rory said, think of the cost factor in some larger systems. I mean, I just think it’s gonna, I just think it’s gonna another additional cost born by the, by the facility.
Chris Martin (29:06):
Well, and the, the interesting thing too about the CMS mandate vaccine mandate is under the, under the OSHA mandate, It, it’s, it’s a temporary measure. It’s supposed to end in six months. The CMS mandate has no end date. So it, my theory is it could, it could continue until the public health emergency ends, which could be
Rory Bellina (29:30):
A while. And at that point the hospitals could voluntarily adopt it as a, as a, as something for them to continue on.
Conrad Meyer (29:36):
But wait, is it tied to the phe?
Chris Martin (29:38):
It’s not, but I, it, I’m just thinking logically it makes sense that it would, but there’s no, there’s no end date to the CMS mandate.
Conrad Meyer (29:47):
Is this gonna be written like our physician fee schedule or our, our, our, you know, other type of fee schedules or, you know you know, in the inpatient perspectives, payments the regs on those. So is this a, is this a regulation now? So it is not tied to pH. So once it’s passed, it’s a final rule. And that means, like you, to your point at, you know, in perpetuity now,
Chris Martin (30:08):
Could be, I think it’s in, it’s called an interim final rule, Correct? Right now. But, but my point is there’s no, there’s no end date like there is for the OSHA private employer.
Rory Bellina (30:19):
Interesting. And the enforcement on this is, is pretty serious. You know, it talks about using state survey agencies. So here that would be Louisiana Department of Health or, or different or if, you know, if they would source that out. But they’re allowed to come in and do compliance reviews for re-certification and complaints. You know, I think complaints is gonna be a big one. It might be a little bit more easier to manage in a small hundred or more private workplace. But I mean, when you’re working in a hospital, you know, there are some people that are, that are for these and there’s some people that are aren’t. And you know, everyone can have their beliefs on that. But I think there’s definitely gonna be cases where if a hospital doesn’t follow this very strictly, there’s gonna be complaints and there’s real dollars at stake here.
Conrad Meyer (31:01):
How about actual access to care? Because from my understanding is, I dunno if y’all have heard this, but for example, a lot of rural hospitals in our rural health, in our rural hospital system, some of them have told, I’ve heard the administrators have said, If I enforce this, I will have no nurses. Sure. If I enforce this, I have to close a med surge floor, or I can’t staff my icu. or even my er. So I mean, this is not just, you know, a, a financial thing or, or, or compliance thing for these hospitals. This is, can I open my doors if I enforce this? Have y’all heard the same thing?
Chris Martin (31:36):
Not only have we heard it, we’ve read it in the first lawsuit that was filed by a number of rural states. Okay. Against cms. And, and the, the government is, and that’s, that one of their arguments is exactly that, Conrad, that if I have, if we have to enforce this, this vaccine mandate, we are going to continue to experience critical healthcare worker shortages to the point where we’re not gonna be able to provide the standard of care that the community’s used to.
Rory Bellina (32:10):
And I, and just, just to piggyback on that, I had a call with a practice earlier this week who discussed that. I was explaining to them the, the, these procedures and they said, Well, you know, if this is the case, then we’re just gonna opt out of Medicare and we’re gonna end our contract and we won’t take it anymore. Cuz if we, if we enforce this, we’re not gonna have enough people to work. Their practice was so anti-VAX per se, that it would, the doors would’ve closed, They would have no providers, they would’ve had no support staff. So they were, they were going back and they were gonna have meetings and discuss it, but talk about possibly opting out of, of Medicare because of these requirements.
Conrad Meyer (32:47):
So let me ask you this guys. So, so I, I understand the premise of this. We all do. We’ve seen it over the, over the, over the last year and a half really year, if you will, from the vaccines inception. My question is, is personal opinion, do you think that this was something that CMS did on a hastily basis simply because they heard the president speak like OSHA and immediately came out with this? You know, or, you know, in other words, my personal opinion is, I don’t think this was carefully thought through in terms of the guidance and how fast it came out. you know, we have a quick trigger. We got a low, you know, quick time, not a lot of time for comments and discussion for obvious reasons. I understand that. but, but just curious, what do y’all think about that?
Do you think this is and if you disagree, I totally understand. I just think it’s, you know, did, did they take in no account The rural, the rural hospital issue? I mean, most of these people in, in rural America have very strong beliefs against the vaccine. If you look at the data just from the news media, you know, you can kind of see where the, the anti-VAX is coming from. And, and a lot of that’s in rural, you know, rural Midwestern America in the south. And and, and so, you know, they’re the ones that are gonna have the issue with access to care issue. Do you think it was a rush to judgment?
Chris Martin (34:05):
I think cms, it’s interesting in the rule, they spend like two lines on that issue, right? And they say, We’ve heard that Implementa implementing this vaccine mandate could have an adverse effect on jobs. The next sentence is, but we don’t have enough evidence to support that.
Rory Bellina (34:25):
Chris Martin (34:25):
Mean the, what my, my thing is I think with the CMS vaccine is CMS has broad authority to establish conditions of participation. Mm-hmm. . So it, I could easily see a court upholding the CMS vaccine under the, under, under the, that they haven’t exceeded that CMS has not exceeded their authority as opposed to the OSHA vaccine where at least the Fifth Circuit very feels very strongly that OSHA far exceeded. Right. It’s, it’s authority. Right.
Rory Bellina (34:59):
You know, when I think about it, I think that the, the administration you know, obviously CMS was run by by an appointee of the president. I think this administration really looked at probably what’s our biggest employer in the United States. And, and I think healthcare is probably the biggest employer per se. And I would say when you drop down from that, the majority of them of healthcare providers take Medicare. They’re enrolled in cms. And so I think this was the low hanging fruit to get a big jump or a big push for more Americans to get vaccinated. I think that was the intent. I think the, the administration looked at what can we do to get more people vaccinated, Right. For whatever reason it may be right. There’s so many reasons. And I think they saw healthcare as the number one industry right now in the United States and 90, I don’t know what the percentage is, but I know it’s in the nineties, participate in Medicare. And so let’s put it into that. Let’s make it of condition of participation. Just like you have to have X amount of fire extinguishers and this wide of doorways and you know, just, just, we’ll squeeze it into there. And that’s going to give a shot in the arm, for lack of a better expression for our vaccination numbers. That
Conrad Meyer (36:10):
Was a good expression. Roy ,
Rory Bellina (36:11):
I didn’t mean, I didn’t mean it to be that close, but is
Conrad Meyer (36:14):
That, you know, a lot of you get Jabber job. I mean,
Rory Bellina (36:16):
And there’s a lot, there’s a lot of issues that could go into this if you don’t, if you don’t comply. I mean, there’s obviously the CMPs civil monetary penalties.
Conrad Meyer (36:25):
Wait, wait. Well for our listeners, they, they don’t know what that means. What, what is this? Explain to, to the listeners, what is a civil monetary penalty?
Rory Bellina (36:32):
Sure. So that’d be a penalty imposed by the, the, I believe it, I think it technically falls under oig, but it’s a, it’s a penalty imposed for not complying with the conditions of participation.
Conrad Meyer (36:43):
Okay. And it’s a fine usually correct. And it and per instance. Correct.
Rory Bellina (36:47):
Which could get very high very quickly.
Conrad Meyer (36:50):
Now, interesting. Will they, will they count each individual employee or person as the instance?
Rory Bellina (36:55):
I think they very well can OSHA is, so I, I don’t see why CMS wouldn’t
Chris Martin (36:59):
They, CMS also has a simple remedy to just deny the claim. Sure. They deny start denying quit paying claims
Rory Bellina (37:06):
Conrad Meyer (37:06):
Terminate you or in addition to the cmp, right? Sure. Wow.
Rory Bellina (37:10):
So they’ll cut off your revenue source and, and you’re kind of forced at that point
Conrad Meyer (37:14):
To not only forced, if you don’t do it, I mean, based on your payer mix, I mean, you could be in a real trouble if you lose, if you have denial, a payment even worse, you terminate it for the program itself.
Rory Bellina (37:25):
Now Chris, one thing that we, we, we talked about after the show last week, but I think it’s important now cuz we’ve, we’ve gone over the basics of the private employer and we’ve gone over the basics of the cms healthcare workers. There’s a little bit of overlap, but there, there’s some clear guidance on one doesn’t apply to the other. And I know you wanted to talk about that, so I think that’d be a good time.
Chris Martin (37:46):
Yeah. So the order, if you are covered, if you are covered under the CMS mandate, then that’s the one that, that trumps you. And that’s the first, first priority. So let’s, so a hospital that has over a hundred private employees wouldn’t come, wouldn’t, would not have to comply with the OSHA mandate because it’s already has to comply with the CMS mandate. So the ranking is CMS mandate first, OSHA mandate second, and then the federal employer contractor mandate third.
Rory Bellina (38:23):
I see that. Thank you for clarifying that because that, I know a lot of people probably were, were confused with that. So if you’re, if you’re subject to cms, then the OSHA rule does not, does not apply to you.
Conrad Meyer (38:35):
Well, a lot of, I’m curious from enforcement to compliance. I’m just thinking in my head of all of the the boxes that need to be checked now from a Medicare participating provider now to comply with this and, and , I don’t know how, I don’t know how they, Some people, I don’t know how they’re gonna do it. I really don’t know. They’re gonna have to really go into high gear very quickly. That’s
Chris Martin (39:03):
Conrad Meyer (39:04):
Chris Martin (39:04):
Quickly. And I don’t think, I don’t think that we, that these, our clients should be lulled into thinking that the courts are gonna just save, are gonna save them because Right. Yeah. The c right now, I mean, there’s been two court challenges to the CMS vaccine. There hasn’t been a temporary restraining order entered. And as we sit here today on November the 18th, right, it’s enforced. And so you need to have a good written covid vaccine policy. You’ve gotta, you’ve gotta have a process for vaccinating all your staff. You have a, you have to have a process and a plan for handling these exemptions. And you have to have a process and a plan for tracking and documenting the vaccination status of all your employees. To your point, Conrad is a, it is a staggering amount of work.
Conrad Meyer (39:55):
A short period of time. Yes. And you know, especially, you know, Chris, cuz you work for a large systems. So I mean, you, you to make that kind of a change system-wide in this timeframe, it, it, it’s like, you know, trying to, you know, climb on Everest, I would say,
Chris Martin (40:13):
Well the big, the big health systems will be able to do it, I
Conrad Meyer (40:17):
Think well cuz they have the personnel
Chris Martin (40:19):
To do it. Right. Got it. It’s the, it’s the physician owned, physician, physician owned facilities. It’s the smaller facilities that I think this is really going to.
Rory Bellina (40:27):
And, and I think what
Chris Martin (40:28):
Impact as well,
Rory Bellina (40:28):
What, what’s confusing and what people should continue to monitor. Like you mentioned, Chris, if CMS applies to you, you don’t need to comply with the other mandates. But if the CMS healthcare does not apply to you, but you have more than a hundred, then OSHA applies to you. So what if we get to the situation where, and I don’t expect this to happen, but I guess it could where the CMS one is stayed, but then the private employer one is kicked back in place. You might be kicked back over to that one. Okay. So there’s, there’s more than one bite at the apple for the government to enforce these regulations. And so what I’m telling people and, and you know, some of them are more hesitant now that the, that that it’s been stayed more permanently. you know, we’re still advising people to, to get, especially our healthcare clients to get prepared for this one way or another because there’s the, the government has now they, they kind of get two bites at the apple on this. And so I think it’s important for people to continue to put into a plan, you know, they might not want to because it, it, they’re, they know that this litigation is gonna go on and they’re hopeful that this doesn’t go into effect. But I mean, Connor, what are you telling people if they’re, they’re kind of hesitant to put in all these procedures in place cuz they don’t know what it might be worthless from a, if they do it and then it, it goes away.
Conrad Meyer (41:43):
I think, I think as a, you gotta prepare for what’s right now. And if you’re gonna be subject to it right now, then you need to prepare for it right now. Otherwise you’re opening yourself up to exposure for the penalties, the fines and remove Remove from, Yeah. And remove from
Rory Bellina (41:59):
The program. Right. And we don’t know if the stay is overturned or if the Supreme Court, you know, holds against it with the flip of a switch, everything could go back into full enforcement. I mean,
Conrad Meyer (42:08):
I just have one question for both of you guys. This one actually, really one word, You ready?
Chris Martin (42:13):
Conrad Meyer (42:14):
I mean, no one’s talked about that, that hasn’t been mentioned in osha, that hasn’t been mentioned in cms. So what’s, cuz I just saw the other day that LDH here is recommending boosters and you know, it’s coming, you know, it’s coming. So where does that fit
Chris Martin (42:32):
In? So right now there’s no requirement under any of the mandates to have a booster shot.
Conrad Meyer (42:39):
Chris Martin (42:42):
As I, as we sit here today, , but
Rory Bellina (42:44):
It could be changed to where,
Conrad Meyer (42:45):
Could be a big butt in that,
Rory Bellina (42:46):
Right? It could, they could change the definition for a fully vaccinated to mean your first two loss.
Conrad Meyer (42:52):
Now I know Australia did this.
Rory Bellina (42:53):
Yes. Your first two plus a booster within six months of your second or fifth Johnson Johnson of your first,
Conrad Meyer (43:01):
And, and just to be fair, Australia did this, What they did, what they said was what? That, that you would not be considered fully vaccinated unless you had your booster. So when are we gonna cross that bridge?
Chris Martin (43:13):
Conrad Meyer (43:14):
Stay tuned. I mean, Yep. This, this is a moving target guys. It really is.
Rory Bellina (43:18):
So to kind of summarize, you know, we’ve gone over now private employers, we’ve now gone over CMS with healthcare and next week we’ll wrap up this three part series. And that’s gonna be with federal contractors and employees, which, you know, a little bit smaller of a bucket. We’ve kind of approached them in, in the terms of who does this affect the most? But Right. You know, that one’s gonna affect people and that one’s got some special, special rules and regulations as well.
Conrad Meyer (43:42):
Yeah. I mean, again, back to when, when, when ACA came in effect. Remember we said that the plans, remember that when, when President Obama says, Oh, you’ll be able to keep your plan, Right? We call them the grandfather plans. Right? But really when this whole thing was set up, it was set to eliminate all those, and they have pretty much, So this, to my mind, it’s the same similar situation. All of these regulatory schemes from osha, cms you know, from the government are gonna, eventually it puts you in a, in a situation where everyone’s gonna have to get it. I mean, that’s my personal opinion.
Rory Bellina (44:15):
I think we’re we’re heading that way. Yeah, I agree.
Conrad Meyer (44:17):
Yeah. Good show guys. Yep. We’re gonna do that now. So look, everybody, we’re gonna wrap up the show. This was great. Part two of our series on the COVID mandates. And this one was the CMS parti conditions of participation mandate. please leave your comments in the comments section on Anchor and let us know what you think about the show today and any suggested topics. We really appreciate that. But until next time, for part three everyone have a great holiday and enjoy the week. Y’all take care.
Speaker 1 (44:49):
Rory Bellina (44:49):
You for listening to Health Law Talk presented by Chehardy Sherman Williams. For more information or to contact us, please visit our website linked in the description below. Also, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, in YouTube, linked in the description below. Thank you for listening.
In the fast-changing world of vaccine mandates, CMS has recently issued its vaccine mandate with respect to the covid vaccine. Interestingly, the CMS vaccine mandate applies to virtually every healthcare provider who participates in Medicare including contractors, employees, independent contractors, volunteers, and other personnel that provide services to those Medicare providers that come into contact with patients. Conrad Meyer, Chris Martin, and Rory Bellina, take a deep dive into the CMS mandate to discuss who is covered, what exemptions apply, how to document compliance with both the mandate and the exemptions, and what penalties Medicare-participating providers will face for noncompliance. Please join us for another exciting episode on a very timely topic in the ever-changing world of vaccine mandates.
Health Law Talk, presented by Chehardy Sherman Williams, one of the largest full service law firms in the Greater New Orleans area, is a regular podcast focusing on the expansive area of healthcare law. Attorneys Rory Bellina, Conrad Meyer and George Mueller will address various legal issues and current events surrounding healthcare topics. The attorneys are here to answer your legal questions, create a discussion on various healthcare topics, as well as bring in subject matter experts and guests to join the conversation.
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