More Court Injunctions Impacting the Federal Contractor & CMS Mandatory Vaccination Rules
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Federal Court Injunctions Impacting the Federal Contractor & CMS Mandatory Vaccination Rules
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Federal Court Enjoins the CMS Mandatory Vaccine Emergency Temporary Standard (ETS)
On Monday, November 29, 2021, the United States District Court for the Eastern District of Missouri – Eastern Division has issued a preliminary injunction staying the Centers for Medicare and Medicaid Services (CMS) Mandatory Vaccination Emergency Temporary Standards (ETS) which were set to take effect on January 4, 2022. This preliminary injunction currently only applies to healthcare providers in the plaintiff states.
On November 10, 2021, the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, and New Hampshire filed a nine (9) count complaint in the United States Court for the Eastern District of Missouri seeking relief from the CMS Emergency Temporary Standard (ETS) which requires certain certified healthcare facilities to mandate COVID-19 vaccination of all employees, contractors, and those performing services “under arrangement.” The complaint alleged that the ETS violates numerous provisions of the Administrative Procedures Act (APA), the Social Security Act (SSA), that CMS failed to consult with the state agencies that would be charged with enforcing such a mandate, failure to perform an impact analysis of the new rules, and several other Constitutional violations.
In the ruling, U.S. District Judge Matthew T. Schelp, agreed with the plaintiffs that a preliminary injunction was warranted because it posed an irreparable harm and that the plaintiffs demonstrated a likelihood of success on the merits of their complaint. The thirty-two (32) page ruling cites that Congress did not give CMS the authority to enact the mandatory vaccination regulations, nor authorized CMS to issue regulations that pre-empt validly enacted state legislation that contradict these new rules. The court believed that the plaintiffs would likely be able to show that CMS violated numerous administrative and rulemaking procedures.
Throughout the ruling the court cited the likelihood of significant harm to state sovereignty and how the implementation of the rule’s requirements would cause substantial economic harm to both the states and the healthcare facilities. Not only through the cost of implementation but also through the impact to a healthcare facility’s ability to provide care due to employees who refuse to get vaccinated.
This ruling is only applicable to covered healthcare facilities in the states of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, and New Hampshire. It is unknown if the stay will be expanded to other jurisdictions. Additionally, the OSHA Vaccination & Testing ETS is currently enjoined and OHSA has announced that they will halt implementation and enforcement associated with those rules. Despite these rulings, many EMS employers are subject to the mandatory vaccination requirements under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
I advise employers to take the initial steps toward compliance while these cases proceed through the legal system. EMS employers are already required to have policies and procedures to determine and maintain a log of their employee’s vaccination status. Additionally, many EMS employers have already been contacted by their contracted healthcare facilities who have enacted a vaccine mandate, either prior to, or in response to the CMS ETS. These facilities may still independently require your staff to be vaccinated.
I recognize that these are incredibly challenging times. If your organization has questions or need assistance deciphering or preparing for these requirements, please contact the AAA by emailing hello@ambulance.org.
40 Under 40: Alicia Ney-Ludescher (Paramount Ambulance – Peosta, IA)
40 Under 40 nominees were selected based on their contributions to the American Ambulance Association, their employer, state ambulance association, other professional associations, and/or the EMS profession.
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Alicia Ney 
Business Development & Training Coordinator
Paramount Ambulance
Peosta, Iowa
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LinkedIn
Nominated by: Kathy Griffin
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Biography:
Alicia Ney-Ludescher, along with her twin brother Andy Ney, was recognized at last year’s American Ambulance Association (AAA) Conference as one of the youngest leaders in EMS. At the age of 28, Alicia has already been working as an EMS provider for ten years. Of those ten years, Alicia has worked as a member of the management team at Paramount Ambulance for nearly six years. Over that time, Alicia obtained her Paramedic certification, so as to better provide EMS care, bring knowledge to her position, and to better understand the providers she was managing and training. In 2010, when Alicia became an EMT in high school, it was not about the excitement of working in EMS, but rather satisfying her dad by working for his newly established private ambulance service. Alongside her twin brother, Alicia became one of the youngest EMTs in the state of Iowa at the time. Throughout college, Alicia worked part-time for the family business but had no intention of working full-time as an EMT. At the time, Alicia was considering careers in insurance or health and wellness. In a turn of events, three months after graduating from Loras College, Alicia joined the family business full-time in management wearing many hats within the organization. In the course of a day, Alicia can go from posting payments to patient accounts, to coordinating new hire orientation, to jumping in an ambulance to provide EMS care on a busy day. Alicia has never been given a formal position or title at Paramount, but that is most likely because there isn’t one that would encompass all that she does for the employees and the organization. Every day that Alicia comes to work, she has a smile on her face with a natural positivity that affects everyone around her. Alicia has a drive and passion for training, organizing, and providing patient care. In her six years with the management team at Paramount, Alicia has streamlined many processes, organized the management team, developed a training calendar for the year for employees, and developed a formal Field Training program for new employees. Alicia’s contributions to the organization have been profound. As a young member of EMS, Alicia represents the new age of technology and information at state association conferences and AAA conferences. It is the young minds that will push EMS into the future and with her organization, structure, and passion for patient care, Alicia will be one of the individuals to aid in that process. Alicia’s twin brother Andy provides her with inspiration every day. The passion they share together for paving the future of EMS within their organization, their county, and their state will make profound strides in the future and quite likely the industry as a whole.
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Reason for Nomination:
Alicia Ney-Ludescher wears many hats within her organization, Paramount Ambulance. From field Paramedic to Accounts Receivable to Business Development, training, and education; Alicia does it all. Most who venture into a career in EMS focus their time and energy on specific functions, but Alicia is focused on the overall growth of her agency and the education of her employees.
Dedicating much of her time to the clinical education and field training, Alicia has a true passion for ensuring clinical excellence based on national best practice standards and has made it her mission to bring this passion for personal and professional educational growth to her field crews on a daily basis.
For the majority of people, handling the number of roles that Alicia does would be a burden. However, her family, friends, and colleagues would all agree, for Alicia, her eclectic involvement within Paramount Ambulance energizes her to pursue excellence around every turn and energizes those around her to do the same.
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View all of the 2020 Mobile Healthcare 40 Under 40 Honorees
Medicaid Waivers to End Coverage of Non-Emergency Transportation
By David M. Werfel, Esq | AAA Medicare Consultant
Updated February 16, 2016
Federal law requires that state Medicaid programs cover necessary transportation to and from health care providers in order to ensure access to care. However, as a result of Medicaid expansion under the Affordable Care Act and cost increases, recently, a few states have asked CMS to waive the requirement for non-emergency transportation so they can end coverage of non-emergency transportation.
CMS granted waivers to Iowa and Indiana. Pennsylvania received permission, but the subsequent change in the governor’s office altered the state’s expansion plans and state officials ultimately chose not to use it. Arizona has a pending request to provide prior authorization.
When Iowa was granted the waiver, a beneficiary survey was conducted to determine the impact on access to care. The survey found some beneficiaries with incomes under the poverty level did not have transportation to or from a healthcare visit. Other beneficiaries said a lack of transportation could prevent them from getting a physical exam in the coming year. However, CMS stated the cases of negative impact were not statistically significant enough to discontinue the waiver.
As a result of the complaints, Sen. Ron Wyden (D-OR) and Sen. Frank Pallone, (D-NJ) asked the Government Accountability Office to investigate the impact of these waivers. The report is not expected in the near future. However, when issued, it could embolden other states to seek a waiver.