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CMS Vaccine Mandate Blocked During Injunctions

On November 30, 2021, the Western District Court of Louisiana issued a nationwide preliminary injunction against the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (IRF). Currently, all CMS facilities across the nation are required to cease all implementation and enforcement of the IFR until further orders from a Court. Health centers can still move forward with staff COVID-19 vaccine mandates.
 

Key points of the Western District Court of Louisiana's decision:

• The Court relied heavily on the BTS Holdings, LLC vs. OSHA court decision, which resulted in a nationwide preliminary injunction against the OSHA ETS vaccine mandate for employers with 100+ employees.
• CMS did not act with "urgency" with issuing the IFR, taking over two months to release the regulation after President Biden's announcement. The Court rejected the Government's definition of emergency, as the "entire globe" has now endured the pandemic for almost two years. The Court stated CMS should have issued a proposed rule including a notice and comment period.
• IFR has vast economic and political significance that requires a clear authorization from Congress to invoke such a broad mandate. Specifically, Congress is the appropriate branch of government to issue a vaccine mandate.
• The IFR violates the Social Security Act because:
  • The CMS vaccine mandate's goal to increase individual vaccination rates will actually harm patient well-being due to staff shortage of providers and supplies.
  • The statute prohibits CMS from dictating facilities' hiring and firing policies for unvaccinated workers.
  • CMS is required to consult the appropriate state agencies relating to conditions of participation by providers of services BEFORE              implementing a new regulation.
  • If facilities fail to comply with the IFR they would be removed from Medicare/Medicaid and be forced to shut down or severely cut back on services provided due to financial losses.
• The vaccine mandate improperly rejected alternatives like testing and natural immunity when drafting the IFR.
• The Court relies on evidence that supports that "the COVID-19 vaccines do not prevent transmission of the disease among the vaccinated or mixed vaccinated/unvaccinated populations, and that mandatory COVID-19 vaccines for hospitals do not increase safety for employees or hospital patients."
• The Court ultimately issues the preliminary injunction to protect public interest by "maintaining the constitutional structure and maintaining the liberty of individuals who do not want to take the COVID-19 vaccine."

 

Guidance for Health Centers moving forward:

• Based on the preliminary injunctions, Health Centers are NOT required to implement the Federal CMS vaccine mandate. This includes the upcoming December 6^th and January 4^th enforcement deadlines.
• Health centers in states without mandate bans (such as Oklahoma) can move forward with their policies and procedures to implement COVID-19 vaccine mandates. This also includes health centers that have already implemented COVID-19 vaccine mandates prior to the CMS IFR vaccine mandate.
• However, Oklahoma Attorney General John O'Connor, one of the fourteen attorneys general who filed the request for a preliminary injunction, is encouraging businesses to hold off on implementing vaccine mandates. "I just encourage all private employers don't jump the gun, please wait, keep those good employees that have been loyal and they want to be loyal to you," O'Connor said during Wednesday. "It's much more expensive to hire and train somebody new than it is to keep the great employees that you have." Read more.
• CMS has already appealed the Missouri Court decision and will likely appeal the Louisiana Court Decision. After the Appeals Court, the Supreme Court would be the last step in the Appeals process. We will have to see how far the appeals process will go before knowing next steps on the CMS vaccine mandate implementation dates and the status of the Interim Final Rule as a whole.

NHSC Loan Repayment Deadline Extended

Most community health center clinicians are likely eligible for $50,000 to $100,000 in Federal loan repayment. The application deadline has been extended to February 3, 2022. The National Health Service Corps received a funding windfall this year and anticipates funding every eligible applicant.
 

Surprise Billing Rule Webinar &Toolkit

Webinar: The National Association of Community Health Centers is hosting a webinar for health centers on surprise billing requirements which take effect in January 2022. Join the facilitated discussion on the No Surprise Billing Act on Friday, December 17 at 1:00 PM CT. Register here.

Toolkit: Starting January 1, 2022, community health centers will be required to provide uninsured patients with a Good Faith Estimate (GFE) of their expected out-of-pocket costs for services, if the individual schedules the service at least three business days in advance, or otherwise requests information about charges.

The U.S. Department of Health and Human Services (HHS) and several other federal agencies recently published the Part II interim final rule (IFR) implementing portions of the No Surprises Act. The rule specifically outlines the “good faith estimate” requirements for uninsured or self-pay individuals as well as the dispute resolution processes dispute resolution processes for surprise medical bills. Health centers will be required to comply with these “good faith estimate” requirements.

A “toolkit” addressing new requirement for CHCs to provide uninsured patients with Good Faith Estimates (GFE) of their out-of-pocket charges, effective January 1. The GFE toolkit contains:

• A summary of the requirements and timelines;
• FAQs organized by topic;
• A draft template a GFE form that health centers can adapt for their use; and
• A flowchart outlining operational steps, such as if and when a GFE must be provided.

Click here to view the toolkit. Contact grassroots@okpca.org with questions.

 

New Medicare Telehealth Mental Health Coverage

Beginning Saturday, January 1, 2022, Federally Qualified Health Center (FQHC) mental health visits with Medicare beneficiaries can be furnished using interactive, real-time telecommunications technology. CMS formalized this regulatory change through the Calendar Year 2022 Medicare Physician Fee Schedule final rule. It is not tied to the COVID-19 public health emergency and is permanent in the absence of further regulatory action. In the same way they currently do when visits take place in-person, health centers will be allowed to report and receive payment for mental health visits furnished via real-time telecommunication technology including audio-only visits when the beneficiary is not capable of, or does not consent to, the use of video technology.

An in-person, non-telehealth visit must be furnished at least every 12 months for these services; however, exceptions to the in-person visit requirement may be made based on beneficiary circumstances. Health centers will be reimbursed 80% of the lesser of their actual charges or the Prospective Payment System rate when these services are furnished to a Medicare beneficiary through telecommunication technology, including audio-only.

Additionally, beginning Saturday, January 1, 2022, FQHCs must add Modifier 95 (Synchronous Telemedicine Service Rendered via Real-Time Interactive Audio and Video Telecommunications System) to claims for mental health visits furnished via audio-video telecommunications and must add Modifier FQ (service provided using audio-only communication technology) to claims for mental health visits furnished via audio-only telecommunications. CMS has released this State Medicaid & CHIP Telehealth Toolkit: Policy Considerations for States Expanding Use of Telehealth, Supplement #1.