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By: Adam Taylor | Senior Editor
Published: 12/9/2021
Three federal judges have temporarily blocked CMS’ proposed COVID-19 vaccine mandate for healthcare workers that was set to take effect on Jan. 4, making an already murky situation for surgical professionals even more confusing.
A Nov. 29 decision by a federal judge in Missouri halted the mandate in 10 states through a preliminary injunction, and subsequent orders by federal judges in Kentucky and Louisiana apply to the other 40 states. The injunctions essentially contend that CMS exceeded its authority when it issued the Nov. 4 mandate. The injunctions halt the rule from going into effect until legal challenges across the country that oppose it have been settled. The CMS ruling would apply to hospitals and surgery centers that receive Medicare as payments for procedures.
Many facilities and institutions that had been preparing for the rule to be implemented next month were jarred by the recent court rulings that will now delay it. “It’s all frustrating and confusing,” says Carson McCafferty, MSN, RN, CNOR, CSSM, CSRN, clinical director at Eye 35 Surgery Center in Schertz, Texas.
The center gets a big portion of its business from Medicare patients and 20% of the staff remains unvaccinated. “With a short timeline and multiple court rulings that seemingly change daily, it’s becoming a huge burden for administrators to stay current. I can only imagine how frustrating it is for the employees who are on the fence about getting the vaccine or keeping their jobs.”
The CMS rule would have given healthcare workers until Dec. 6 to get the first dose of the Pfizer or Moderna shots and until Jan. 4 to get the second dose, or the lone Johnson & Johnson shot. ASCs cited for noncompliance might have been subjected to enforcement remedies ranging from civil penalties to termination of their Medicare certification, according to the Ambulatory Surgery Center Association. After the federal courts’ temporary injunctions, surgical facilities are left to wonder what’s next, including the possibility that courts of appeals could overturn the injunctions.
Three ASCs operated by the Florida Medical Clinic in the greater Tampa area, where approximately 20 of the 150 employees are not vaccinated, are moving forward with steps to prepare for the original Jan. 4 deadline. The facility has collected immunization cards from those who have been vaccinated and distributed exemption forms to those who have not. A committee has been created to review the exemption requests, which include preexisting medical conditions and religious beliefs, and decisions will be made by Jan. 4.
Cherokee Gonzalez, director of Florida Medical Clinic’s ASCs, says the vagueness of the CMS mandate and valid exemptions to the rule present problems for facilities. “It’s like having a law telling motorists to drive safely, but not mandating a speed limit or listing the locations at which you have to stop,” she says. “There are no hard-and-fast definitions of ‘strongly held,’ ‘belief,’ or even ‘religion’ we can use for guidance to determine valid religious exemptions. More meat on the bones of the rule would make it easier to comply.”
Florida Medical Clinic is also trying to determine additional safety measures to use with unvaccinated workers, such as regular testing, daily temperature checks and a daily acknowledgment that they don’t have COVID-like symptoms. Ms. Gonzalez emphasizes that since the pandemic began, all staff wears masks, engages in high-level hand hygiene and social distancing – and continues to prohibit visitors at the centers.
Casey Duhart, BS, M.Ed., JD, a labor and employment attorney at Acadia Healthcare in Franklin, Tenn., says everyone is in a waiting game for now. “No matter how the federal circuit courts ruled, these cases will likely end up in the U.S. Supreme Court.” OSM
Last month, CMS announced its 2022 final payment rule for ASCs and hospital outpatient departments (HOPD) to mixed reactions. The Ambulatory Surgery Center Association (ASCA) is encouraged by a modest increase in average payment rates for ASCs, but disappointed that CMS finalized its decision to reverse course on increasing the number of procedures payable at freestanding surgery centers and eliminating the inpatient-only procedure list.
CMS had nearly 300 of the 1,700 procedures on the inpatient-only list this year, with the plan for the list to be eliminated entirely by 2024. Those procedures will be reinstated in 2022, and the phased elimination plan for the inpatient-only list has been scrapped.
David M. Shapiro, MD, CHC, CHCQM, CHPRM, LHRM, CASC, an anesthesiologist with extensive ASC management experience and a past president of ASCA, was disappointed by the reversal. “It’s an astounding pivot backward that ignores clinical judgment and clinical reasoning,” says Dr. Shapiro. “Removing these procedures from the inpatient-only list doesn’t mean they will automatically be performed at ASCs. It simply means that doctors and patients will decide where they’ll be performed instead of a federal governmental agency.”
Three procedures that were removed from the inpatient-only list and added to the ASC Covered Procedure List this year will remain eligible to be performed at surgery centers: codes 22630 (lumbar spine fusion), 23472 (reconstruction of the shoulder joint) and 27702 (reconstruction of the ankle joint). ASCA says it lobbied CMS with research and data that showed these procedures were safe to perform on an outpatient basis.
The 2022 rule also includes an average 2% increase in reimbursement rates for ASCs. This represents a 0.3% decrease from the hike that was originally proposed, according to ASCA. A 2.7% increase was added to account for inflation, and .7% was deducted based on Affordable Care Act requirements.
“We hope that we can work with the Biden administration in 2022 to make significant, constructive changes to the program so that more Medicare beneficiaries can get care in the ASC setting for the many additional procedures that can be safely performed in ASCs,” says ASCA CEO Bill Prentice. “Doing so will generate savings for both patients and the program.”
— Adam Taylor
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