On August 18, 2021, President Joe Biden announced from the White House that his administration would require nursing homes to vaccinate their staffs against COVID-19 or risk losing Medicaid and Medicare funding. He said that this step was designed to keep people safe amid the rising number of COVID-19 cases across the country caused by the highly transmissible Delta variant. He stated: “With this announcement, I’m using the power of the federal government, as a payer of healthcare costs, to ensure we reduce those risks to our most vulnerable seniors.”

According to White House officials, the administration plans to issue new regulations through the U.S. Department of Health and Human Services. The U.S. Centers for Medicare and Medicaid Services (CMS) will prepare the regulations, which could be effective as early as September 2021. According to a White House fact sheet, the rules “would apply to nearly 15,000 nursing home facilities, which employ approximately 1.6 million workers and serve approximately 1.3 million nursing home residents.”

Data from CMS shows a disparity between the percentages of nursing home residents and nursing home employees who have been vaccinated. On August 19, 2021, CMS reported that as of August 8, 2021, 82.8 percent of nursing home residents per facility had been vaccinated, but only 60.5 percent of nursing home employees had been vaccinated.

Part of the reluctance of many nursing home owners to mandate vaccinations is due to the possibility of their losing a large percentage of their existing staff, which is already low in number. According to nursing home industry officials, this move could result in massive staffing shortages for nursing homes. Mark Parkinson, president and chief executive officer of the American Health Care Association and National Center for Assisted Living (AHCA/NCAL), which represents more than 14,000 facilities, stated that the imposition of such a mandate solely on nursing homes, without a broader application to “all health care settings,” could cause “a disastrous workforce challenge” as “vaccine hesitant workers … flee to other health care providers and leave many centers without adequate staff to care for residents.”

Based on the well-placed concerns about this forthcoming regulation and its potential impact on staffing in the nursing home industry, it will be interesting to see if the Biden administration extends the mandatory vaccination requirement to other health care entities. Many major hospitals around the country have already announced their implementation of mandatory vaccination policies, but conditioning continued federal funding on the adoption of mandatory vaccination policies would likely motivate most health care entities to move in that direction. Of course, there is also the possibility that the proposed regulation could be subject to a constitutional challenge or other legal challenge.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.