MACS Testimony State House

Breaking News: The Build Back Better plan just passed the US House!

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The bill is now headed to the Senate! This is the legislation also known as the “human infrastructure bill” that among other things, includes historic funding for healthcare, universal pre-K, climate change, housing, etc. The legislation still has a long way to go in light of political and procedural challenges in the Senate—and the bill will have to come back to the House for a vote if the Senate makes changes (as it inevitably will). But for now, this is a huge step forward for the bill which passed with $150B for HCBS. Stay tuned for advocacy alerts after the Thanksgiving holiday. See ANCOR’s summary of HCBS-relevant funding below:

  • Historic Investment of $150 billion for Medicaid Home and Community Based Services.
  • 6 percentage-point FMAP increase over a 10-year period
  • HCBS improvement states may be eligible for an additional temporary 2 percentage-point FMAP increase for implementing a program to support self-directed care
  • Requirement that states will review payment rates-initially 2 years after each state’s HCBS improvement plans are approved and then every 3 years
  • Permanent extension of the Money Follows the Person program
  • $270 million for a grant program to assist states that choose to phase out 14c certificates that enable providers to pay Medicaid beneficiaries sub-minimum wages
  • $1 billion over a 10-year period for a grant program to invest in strategies to recruit, retain, and advance the direct care workforce

OSHA ETS Vaccine & Testing Update: A Cautionary Tale…

We also want to update you on the status of the ETS before we head into the weekend. On Tuesday, the various cases filed in connection with the ETS were consolidated into a single matter and assigned to the Sixth Circuit Court of Appeals.  This court was chosen at random and is generally considered to be one of the more conservative circuit courts.  There are some additional procedural matters that will be decided upon in the coming days but it is anticipated that the court will set the case in for hearing sooner rather than later. Then it is a good bet that the case will be appealed to the Supreme Court.

Should We Bother Preparing to Comply in Light of the Stay on Implementation of the ETS?

We have a received a number of questions about whether employers need to spend the time and resources moving forward with steps to comply with the ETS in light of the fact that the ETS is currently on hold pending the outcome of judicial review.  We strongly encourage you to discuss this with your own legal counsel, however, we can tell you that in light of the complexity of the requirements of the standard, the hefty fines associated with non-compliance as well as the uncertainty of the timing of judicial review, many of the national law firms are encouraging employers to move forward with compliance planning even if holding off on implementation.

Shawe Rosenthal’s update following the Fifth Circuit’s decision last Friday:

“While the details of the opinion make for interesting reading and provide a potential roadmap for a permanent injunction of the ETS, the question for employers remains the same: Should we still prepare for the ETS to be implemented?  The answer to that question is the same as it was yesterday (and as we further explained in our November 9, 2021 blog post): likely so.  Although the ETS is temporarily stayed, the temporary stay is precarious.”

Fisher Phillips’ FAQ on the ETS:

“We advise employers to spend the coming weeks preparing for the ETS as if it will take effect but waiting to implement its measures until the final judicial outcome is certain. The earliest effective date for any of the ETS requirements is December 6, which includes the need for you to have a vaccination policy and various other technical standards in place. You will be hard pressed to develop these materials overnight, so spend this interim limbo time efficiently and be prepared to comply should the ETS ultimately be upheld.”

Noncompliance Fines are Hefty

Fines for noncompliance are considerable and may be as high as $13,653 per violation (potentially per person) and $136,532 per “willful or repeated violations.”  Should OSHA ultimately prevail, it is possible that implementation deadlines will not be delayed and could possibly be in effect retroactively.

Policies and Procedures Needed for Compliance Will Take Time to Develop and Implement— Don’t Wait Until the Last Minute

Among other things, employers must decide whether they are going to mandate the vaccine or create a testing option and create a process for determining and tracking employee vaccination status. Employers who provide a testing option must have a process for tracking and verifying test results.  All employers will need to be prepared to handle requests for accommodations related to the vaccine, testing, masking, etc.  See Fisher Phillips’ “5 Step Plan.” 

Additional Resources:

  • HUB International webinar on what employers need to do for compliance
  • Fisher Phillips article on status of ETS
  • OSHA webinar on the ETS
  • Shawe Rosenthal OSHA ETS FAQ