STATE NEWS
Overview of Executive Order No. 22-01 and the Impacts on Nursing Practice
Read the update from KSBN. Contact carol.moreland@ks.gov with questions.
Read This Week’s KDHE COVID-19 Newsletter
Check out the latest newsletter from KDHE. Sign up for the weekly newsletter.
Kansas COVID-19 Cluster Summary
As of January 14th, there are 76 long-term care facilities with clusters and 17 are LeadingAge Kansas Members.
Statewide Active COVID-19 Clusters
- Clusters: 218
- Cases: 3,122
- Hospitalizations: 50
Kansas COVID-19: Case Rates
- Cases: 621,273
- Total Case Rate Per 1,000: 213.25
- Daily Cases Diagnosed: 1,097
Long-Term Care Facilities with Active Cluster Case Information
- Clusters: 121
- Cases: 1,453
- Hospitalizations: 39
Source: https://www.coronavirus.kdheks.gov/160/COVID-19-in-Kansas
FEDERAL NEWS
CMS Interim Final Rule Allowed to Proceed Nationwide, but OSHA Emergency Temporary Standard Blocked
The US Supreme Court issued decisions today on the legal challenges to the OSHA Vaccination and Testing Emergency Temporary Standard (ETS) and the CMS Interim Final Rule (IFR). CMS posted a press release yesterday stating that timelines that apply to providers in the states that were required to move ahead with implementing the IFR on December 28th are not changed. We have learned that CMS is planning to post a memo today updating its recent guidance and describing plans to move forward with efforts to enforce the IFR nationwide as these cases work their way through the lower courts. The language in the press release does imply that there will probably be new timelines that apply to the states that were previously not implementing the IFR due to the injunction.
CMS IFR May Proceed Nationwide
In a 5-4 decision (Roberts, Kavanaugh, Breyer, Sotomayor, and Kagan) the court stayed the injunctions in place in the Louisiana and Missouri cases that challenged the CMS IFR. Thus, CMS can move forward and enforce the IFR nationwide while the legal challenges make their way through the Fifth (Louisiana case) and Eighth (Missouri case) Circuit Court of Appeals, respectively.
The majority found that the CMS IFR fit within the authority granted to the Secretary of HHS by Congress:
- Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9). COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic. Id., at 61613.
The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the “very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Florida v. Department of Health and Human Servs., 19 F. 4th 1271, 1288 (CA11 2021).
OSHA ETS Blocked
In a 6-3 decision, the court granted a stay of the OSHA ETS and prohibited OSHA from enforcing the ETS pending further legal proceedings in the Sixth Circuit Court of Appeals.
The Court found that OSHA overstepped its authority in issuing such a broad ETS:
Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”….
There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.
The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. ….. Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.
The practical effect of this will be that OSHA will not be able to enforce the ETS while the legal proceedings make their way through the courts. Because the case will take time to make it through the judicial process and the OSHA ETS only lasts six months, it will likely not be enforced in its current form as it will expire before it makes it way back to the Supreme Court.
We will wait to see how OSHA responds to this decision and how they plan to proceed.
CDC RESOURCES
- CDC Strategies to Mitigate Healthcare Personnel Staffing Shortages Updated Dec. 23, 2021
- CDC Clinician Outreach and Communication Activity (COCA). COCA prepares clinicians to respond to emerging health threats and public health emergencies by communicating relevant, timely information related to disease outbreaks, disasters, terrorism events, and other health alerts. Learn more about COCA. Check COCA’s webinar schedule and archives
Coverage of At Home COVID-19 Tests by Insurance
Private insurance now must cover up to $12 each for 8 tests per month per person. Contact your employee health insurer for more details on how they will implement this new requirement. Direct coverage means that your insurance company set up a network of providers (both in person and on line). Medicaid and CHIP must cover at home tests with no cost sharing. Medicare advantage providers/members are encouraged to check with their plans to understand coverage and payment by their plan. READ THE GUIDANCE. Read the FAQS.
HUD Test Kit Access
Federal agencies announced in December that HUD-assisted housing communities can access COVID-19 test kits from Federally-Qualified Health Centers to distribute to residents. Despite challenges with supplies and partnerships, HUD and HRSA (the federal entity overseeing the community health centers) are ramping up efforts to increase access. We encourage housing providers to reach out to their community health centers for access to test kits and then fill out our quick survey to let LeadingAge National know what worked, and what didn’t work. LeadingAge will use the results of the anonymous survey to help HUD and HRSA prompt health centers to forge better partnerships with HUD communities. More information here.
Provider Relief Fund (PRF) Updates – HRSA reports that:
- ARP Rural and Phase 4 payments will continue to be issued throughout the first quarter. Reportedly, it is manually reviewing 25,000 applications for risk mitigation purposes resulting in the delay.
- Providers can choose a different lost revenue calculation for the 2nd report than used in the 1st report (this is a change in previous policy and the implications are not yet clear but LeadingAge is seeking more info from HRSA). The reports for period 2 will also contain several pre-populated fields, which is a definite time saving positive. However, HRSA is allowing providers to update some of these fields under certain circumstances and with appropriate justification. LeadingAge will seek additional input on whether this would allow providers to restate some previously reported data.
Email Nicole Fallon with your PRF questions and comments.
Save the Date: LeadingAge HRSA Provider Relief Reporting Webinar February 2nd at Noon Central
Presenters from the Health Resources and Services Administration PRF Team will provide guidance on PRF reporting topics with a focus on the new reporting on Nursing Home Infection Control funds received in 2020. More details, including registration, will be available next week.
LEADINGAGE KANSAS NEWS
Important Information Shared in our Weekly Webinar Today
Listen to the recording. Download the handouts.
Today we covered the
Join us next Friday for more up-to-date information and a rundown of the second week of the 2022 Legislative Session. Weekly Webinars are on Fridays at 10 AM. Register for 2022 here if you haven’t already.
Run Down of the Results of the Temporary Staffing Agency Survey Conducted by LeadingAge Kansas and KHCA
Here are the results from the Temporary Staffing Survey that we conducted. Highlights include:
- 76% of respondents say they contract with one or more agencies
- 26% of respondents say they will not contract with certain staff due to poor experience or education
- Names of staffing agencies used across the state
- Names of companies that have provided bad experiences
THANK YOU TO OUR BRONZE PARTNER
