COVID-19 National Update January 20, 2022: SCOTUS Upholds CMS Vaccine Mandate, Rejects OSHA Employer Mandate

The seven-day rolling average for COVID-19 deaths in the U.S. has been trending upward since late fall and experts warn that the unprecedented level of daily COVID-19 infections due to the Omicron variant will bring a sharp increase in deaths soon.

Despite the lower chance of becoming sick due to the “mild” symptoms associated with the variant, the wave of deaths will likely crest in late January or early February. According to the Associated Press, the peak could surpass the previous U.S. peak in deaths last year.

Due to the wave of cases, nursing homes are facing a struggle once again. According to Modern Healthcare,  a near-record of 32,000 COVID-19 cases among residents in the week ending January 9 was reported in nursing homes. A total of 645 deaths were recorded during the same week and there are concerns that number will increase week-over-week despite nursing home residents being 87% vaccinated.

The U.S. Department of Health and Human Services (HHS) announced that the government would renew the COVID-19 public health emergency (PHE) for an extra 90 days. According to Revcycle Intelligence, the extension affords hospitals and health systems extra protections and government support.

The Centers for Disease Control and Prevention (CDC) updated its recommendations for mitigating COVID-19 spread with masks. The Center clarified its stance on cloth masks last Friday, saying that cloth masks do not offer as much protection as surgical masks or masks with respirators like the N95 and KN95, the New York Times reports.

The Biden administration announced on January 13 that it would make over 700 million N95 masks free and available to the American public. According to Inside Health Policy, experts are concerned that this will destroy the national stockpile. Premier, an alliance of 4,000 hospitals and healthcare systems warned that while the medical supply chain is stable, it could face disruption.

In essence, these proposals will completely eradicate that supply and then some. At the same time, these proposals will prompt bad actors to buy the remaining N95 and KN95 supply in anticipation of shortages, which will lead to a reemergence of shady gray market brokers and price spikes, as well as potentially counterfeit or subpar masks that don’t provide 95% filtration.

President Joe Biden also announced that one billion at-home COVID-19 tests would be made available to the public for free. On Tuesday, a covidtests.org was launched through the United States Postal Service at which individuals could request to have a maximum of four free tests shipped to their address. According to U.S. News, the White House also plans to open up a phone line, and USPS will use up to 7,000 temporary workers to shoulder the shipping of the kits.

On January 15, requirements for coverage and cost-sharing of COVID-19 at-home over-the-counter tests for insurers went into effect. While past federal guidance requires insurers to cover tests, it allowed them to require enrollees to first obtain a health professional’s recommendation that the tests were medically necessary. According to CHIRBlog, the new requirements allow consumers to purchase the tests without authorization from a health professional.

CDC Director Rochelle Wallensky said in an interview with the Wall Street Journal that she hasn’t been clear enough with the American public on guidance. The director has come under fire for the way she has communicated pandemic guidelines about mask wearing and isolation requirements.

The JAMA Network published a research letter last week on U.S. insurer spending on ivermectin prescriptions for COVID-19. Ivermectin is a popular treatment among anti-vaccination advocates, and due to their support for the anti-malarial drug, ivermectin dispensing surged in the U.S. in December 2020. Findings demonstrate that insurers have heavily subsidized the costs of ivermectin prescriptions for COVID-19, estimated at $2.5 million in the week of August 13, 2021 which would extrapolate to $129.7 million.

SCOTUS on the Vaccine Mandates

All 50 states are now subject to the Centers for Medicare and Medicaid Services’ (CMS) requirement that all healthcare workers become vaccinated. Last week, the Supreme Court of the United States (SCOTUS) removed a stay on the requirement in 24 states that opposed the policy. According to CMS, the agency has set varying compliance deadlines reflecting whether the rule was enjoined in a state or not.

Fierce Healthcare reports that for the 25 states and territories that were unaffected by legal stays, healthcare providers must have a vaccination policy in place with all staff having received at least one dose of a vaccine or a qualifying exemption by January 27.

The Supreme Court’s decision to overturn the stay has some health systems bracing for the impact on the already severe worker shortage. The New York Times reports that larger hospital groups like the Cleveland Clinic and HCA Healthcare suspended their own vaccination mandates while they waited for a decision.

The American Hospital Association was tepid in its response, reminding the administration that hospitals will need federal support as the worker shortage crisis worsens:

In addition, we expect the Administration to continue to work with us by providing the funding and other resources needed to pursue aggressive and creative strategies to bolster the healthcare workforce. Without further support, hospitals and health systems will continue to struggle to maintain the workforce necessary to battle the virus while also maintaining the essential health services that patients and communities depend on each day.

HHS Secretary Xavier Becerra applauded the Court’s decision:

Allowing implementation of the rule that healthcare facilities require their workers to be vaccinated will undoubtedly save lives. This is an important requirement to protect patients. Healthcare workers are giving their all, every day, to battle this pandemic and save lives, and this rule will help ensure that our hospitals and healthcare facilities are safer environments.

SCOTUS did not uphold the mandate that businesses with over 100 employees should require that all employees become vaccinated, JD Supra reports. The mandate was authorized through the Occupational Safety and Health Administration (OSHA), but the Supreme Court found that such a mandate would overstep the agency’s authority. From the decision:

Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

The American Medical Association voiced its disappointment on the OSHA ruling:

Workplace transmission has been a major factor in the spread of COVID-19. Now more than ever, workers in all settings across the country need commonsense, evidence-based protections against COVID-19 infection, hospitalization, and death—particularly those who are immunocompromised or cannot get vaccinated due to a medical condition. In fact, recent data released by United Airlines shows that before their own vaccine requirement went into effect, on average, more than one United employee was dying each week from the virus; however, today, none of their vaccinated workers are currently hospitalized with COVID-19 despite breakthrough infections and 3,000 current positive employees.

National Nurses United, the country’s largest union of RNs, did not mince words in it’s response:

That twisted logic ignores the disproportionate number of infections, hospitalizations, and deaths among tens of thousands of essential workers over the past two years, from infections that have been contracted on the job. And the pandemic is far from over, with the latest deadly surge still overwhelming hospitals.