Explosive Politico Article on CDC and COVID Requirements: Five Takeaways for Healthcare Leaders | Husch Blackwell LLP



On May 30, 2022, Politico published an article with the title: America’s Hospital Regulator Wasn’t Built for a Pandemic. The gist of the article:[T]The Centers for Medicare and Medicaid Services are ill-equipped to enforce its rules. This is important for hospitals and other healthcare facilities that are still struggling with masks and vaccines.

Five interesting points taken from the article are described below.

  1. Everyone seems to know that religious exemptions are a weak point in vaccine enforcement.

In the article, a Georgia nurse boasts, “I don’t really have a religious exemption. For this nurse, opting out of vaccination with a religious dispensation was easy: “In one click, [the nurse] said he lied to his employer by stating on a one-sentence administrative form that his religion prohibited vaccination.

Throughout the fall and winter of 2021, healthcare employers struggled to review and assess employee religious exemption requests. Then, on December 28, 2021, the Advice to Regulators and CMS clarified their intended approach to verifying religious exemption requests: “Investigators will not assess the details of the religious exemption request, nor the rationale for the request. whether the hospital accepts or denies the request. Instead, investigators will review to ensure that the hospital has an effective process in place for staff to request a religious exemption for an honest religious belief. This process-based enforcement mechanism has given healthcare employers a great deal of leeway – and little guidance – to use when assessing employees’ religious exemption requests.They could question the veracity of sincere religious belief, placing patient safety above the need for a religious exemption, or simply allowing employees to click a button and provide a single sentence to apply for a religious exemption.

CMS’s approach has created a conundrum for healthcare employers seeking to comply with CMS’s vaccination mandate while avoiding complaints of religious discrimination from employees. Litigation where employers have denied religious exemption claims is starting to make its way through the courts, and even circuit appeals courts are beginning to intervene. Some healthcare employers who have denied religious exemption requests due to patient safety concerns are now reassessing those requests given the changing nature of the COVID threat. For example, some facilities are recalling nurses and other professionals who were placed on unpaid leave when their requests for religious exemption were denied.

The Politico article exposes the weak spot in vaccine enforcement that everyone knows about. CMS, however, reserved the right in the interim final rule to review compliance requirements for documenting religious exemption requests: “We have decided to establish minimum compliance burdens for both categories of exemptions. This decision on evidentiary standards could be reconsidered if a problem of abuse arises on a large scale.

Could articles like this in Politico make it easier for CMS to review the application of the religious exemption?

  1. Healthcare facilities are required to impose additional infection control measures for unvaccinated staff.

Healthcare facilities covered by the CMS Interim Final Rule are required to provide infection control measures specifically for unvaccinated staff. If the facility requires all staff to wear N95 masks and no additional precautions are taken for unvaccinated staff, the facility is likely non-compliant. CMS and the Joint Commission expect more.

There should be additional precautions specific to unvaccinated staff, even if the facility already has extensive infection control measures in place for all. For example, if all staff are required to wear N95 masks, perhaps unvaccinated staff could still be required to undergo weekly COVID tests. Weekly COVID testing would be the additional infection control measure required.

Although the Politico article contains only one sentence addressing this issue, it is common for healthcare employers to overlook this requirement of the interim final rule. When the State Inspector, Joint Commission, or SMC comes knocking on your door, they will ask you to identify any additional infection control measures you take for unvaccinated personnel. Facilities must have something to point to.

  1. State Surveyors, CMS and the Joint Commission are surveying.

CMS told Politico it cited 69 hospitals for breaching the mandate. The Joint Commission declined to state the number of hospitals or other facilities it had cited, but noted that “it has seen a slight increase”.

It has now been nearly six months since the interim final rule went into effect for most healthcare facilities across the country. Enforcement efforts have begun, and employers would do well to engage in a self-verification of their compliance with the interim final rule. A self-verification conducted under solicitor-client privilege should protect it from the prying eyes of government regulators.

  1. Masks are still mandatory in health facilities.

Perhaps the most fascinating aspect of Politico’s article was the idea that the Politico report “took CMS by surprise” when it came to masking in healthcare settings. The reporter noted that although a CMS official said hospitals still need masks, “several patients and health care workers” told Politico that masks were not needed at their facility.

The CDC continues to recommend masking for “everyone in a healthcare setting,” regardless of vaccination status. The color-coded community tiers that the CDC rolled out in late March 2022 do not apply to health care. Establishments looking to get rid of masks should seek legal counsel to review the most recent requirements and assess the risks of going without masks.

CMS was apparently surprised by the lack of masking in covered facilities, and you can expect them to pay close attention to this issue now that Politico has identified it.

  1. On Wisconsin.

Finally, related to this masking requirement, Politico named a patient from rural southwest Wisconsin. She has two immunocompromised children, but said her main hospital does not require staff or visitors to wear masks. She remembers meeting 30 unmasked people in a waiting room. “It’s madness,” she told Politico. “We need CMS to step up.”

This article could lead to increased enforcement actions by CMS. Undoubtedly, however, there are people like the patient in the great state of Wisconsin who will complain to a CMS, OSHA, or other enforcement agency near you.

A self-check is an appropriate step to take to prepare for what may be increased enforcement activity.

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