Thursday, December 22, 2016

Hospital that fired workers for refusing annual flu shots must reinstate them with back pay--and exploring the odd mechanisms used to impose vaccine mandates on healthcare workers, while CDC claims there are "no legally mandated vaccinations for adults"

A hospital in Erie, PA fired 6 healthcare workers for refusing the annual flu shot.  Taken to the EEOC, the hospital has settled by offering them their jobs back with $300,000 in back pay.

The interesting piece to me is the acknowledgement that the hospital imposed its mandate (with over 99% compliance of its remaining workers) in order to get higher Medicare reimbursements.

Yet the federal government, via CDC, claims it does not impose mandates, and suggests that it is actually illegal to force US adult civilians to get vaccinated. (Cite below)

What is going on?  

The federal government has created and co-created a variety of organizations which are supposed to help determine how to improve the "quality of care."  These organizations are called 1) QIOs, established by Medicare

and 2) organizations like the National Quality Forum, a federally-established, public-private health quality assessment organization

Medicare is used as a cudgel (while the federal government hides behind the “quality improvement” skirts of organizations it created) to forcibly impose certain cherry-picked "quality" measures on medical institutions, by lowering reimbursement rates to institutions that do not comply well enough with the “quality improvement" measures it selected, and raising rates for those that do.

At the same time, CDC wants you to think requiring flu shots has nothing to do with them:

“CDC does not issue any requirements or mandates for state agencies, health systems, or health care workers regarding infection control practices, including influenza vaccination. There are no legally mandated vaccinations for adults, except for persons entering military service. CDC does recommend certain immunizations for adults, depending on age, occupation, and other circumstances, but these immunizations are not required by law.”
Yet  CDC elsewhere on its website acknowledges what is really going on:  

“...Facilities must report employee coverage rates of flu vaccination as a quality measure: "Currently, the Centers for Medicare and Medicaid Services (CMS) requires reporting of influenza vaccination coverage for workers in acute care hospitals as a part of the Inpatient Quality Reporting Program through the Centers for Disease Control and Prevention’s (CDC) National Health Care Safety Network, a web-based data reporting system using National Quality Forum (NQF) #0431. Each hospital’s influenza vaccination coverage among their health care personnel will be included as a quality measure on Medicare’s consumer-based Hospital Compare program.”
What CDC failed to say was that the National Quality Forum's "quality measure" #0431 (which requires hospitals to report their staff's flu shot rates) was both initiated by and stewarded through the approval process by CDC.  CDC also failed to say that this measure was not only part of the Hospital Compare program, but it has been included as part of a composite measure of hospital quality affecting each hospital's Medicare reimbursement rate.

The bottom line is that the federal government squeezed hospitals by requiring hospitals to report the rates of yearly influenza vaccinations of both hospital staff and hospital patients, including these two measures in a global calculation of hospital "quality." A hospital's "quality" number determines approximately 3.75% of its overall Medicare reimbursements rate in 2017 (with yearly adjustments to this number).  In the healthcare industry, 3.75% is enough to make a hospital sink or swim.  The hospitals, predictably, acquiesced by demanding their employees be vaccinated or fired.

But the federal government insists it imposes no mandates.  Yet its actions created a de facto mandate.  Where are the lawyers who will litigate this in federal court?

I don’t understand why cases are going through EEOC, where employees may win, when their wins do not impact the de facto healthcare worker flu shot mandates that continue to be imposed in most US healthcare institutions today.

But here is the worst part:  healthcare worker vaccinations have not been shown to protect patients from influenza, according to 3 meta-analyses by the Cochrane Collaboration and, the World Health Organization
and CDC itself

Each of these three groups examined the world literature on the effects of healthcare worker (HCW) vaccinations in 2012-13, and each determined that there was no statistically significant evidence that healthcare worker influenza vaccinations prevented either influenza cases or influenza deaths in their patients.  You cannot get better evidence than this.  Healthcare worker flu vaccinations, despite what the public has been told, do not improve patient care.  Furthermore, there is no good evidence that flu shots benefit the over-65 Medicare patients who are also being vaccinated to comply with a second "quality" measure.  

To my knowledge, no one has looked to see if hospital inpatients have poorer outcomes because of these shots, but they certainly might.  The shots cause a generalized inflammatory reaction that might adversely affect patients with, for example, autoimmune diseases, pneumonia or heart attacks.

Few people are aware of the tremendous financial pressures being brought on healthcare institutions and providers to give them a yearly influenza vaccine.

In August 2014, soon after the evidence against HCW flu shots was published by Cochrane, WHO and CDC (so how could the feds not know?) the federal government added healthcare worker flu vaccination rates as one of the "quality" measures determining hospitals' Medicare payment rate, the science be damned.

That no one in media or healthcare administration seems to know about this incredible preponderance of evidence against healthcare worker flu shots is itself interesting.  

P.S.  Here is the Federal Register listing of all the "quality measures" by which hospitals are being judged.  The list starts on page 50246.  Note that both patient flu vaccination rates and healthcare staff flu vaccination rates affect hospitals' bottom lines in FY 2017.

Update:  I have written more about the process by which CDC misleads us on this issue here.

Saint Vincent settles federal lawsuit filed by workers who claimed religious discrimination.
By David Bruce 
Saint Vincent Hospital has agreed to rehire six former employees it fired after they refused to get flu shots in late 2013 and early 2014 due to their religious beliefs.
The Erie hospital also will provide about $300,000 in back pay and compensatory damages to the employees as part of an agreement to settle a lawsuit filed on behalf of the workers by the Equal Employment Opportunity Commission in September. A consent decree that ended the case and detailed the settlement terms was filed Tuesday in U.S. District Court in Erie.
The commission had claimed Saint Vincent violated Title VII of the Civil Rights Act of 1964 when it fired the six workers, who refused to be vaccinated after the hospital implemented a mandatory flu vaccination policy for all employees. The hospital granted medical exemptions to 14 other workers.
"The consent decree filed this week between the EEOC and Saint Vincent Hospital does not constitute any admission of violations by Saint Vincent or a finding on the merits of the case," Dan Laurent, a spokesman for Allegheny Health Network, Saint Vincent's parent organization, said in an email. "Although we have vigorously and respectfully disagreed with the EEOC's position and characterization of how employee claims outlined in this lawsuit were handled by the hospital, we have reached a resolution of the matter in the interest of avoiding the expense, delay and burden of further litigation on all parties."
As part of the consent decree, Saint Vincent must pay the following employees back pay and compensatory damages:
  • Bryan Nash - $81,712.86;
  • Aleksandr Gevorkyan - $81,814.81;
  • Aza Galustyan - $54,493.85;
  • Joshua Dolecki - $19,608.17;
  • Lisa Waller - $29,503.37;
  • Beth Theobald - $32,866.94.
In addition to providing the money, Saint Vincent must also offer to reinstate each former employee to their previous job with the same pay and benefits. If the job is not vacant, Saint Vincent must offer the employee a similar job if one becomes vacant over the next two years at any of the defendant's facilities within a 50-mile radius of Saint Vincent.
Saint Vincent implemented the mandatory flu shot policy to receive the maximum reimbursement for treating Medicare patients. At least 95 percent of the hospital's entire workforce had to be vaccinated to meet the requirements, Saint Vincent officials said in 2014 shortly after the policy went into effect. Saint Vincent said in February 2014 that 99.4 percent of its workforce had been vaccinated or received an exemption.Those who sought a religious exemption for a flu shot were told they must provide proof of doctrine from an established religious organization. Several employees who provided letters from clergy were still denied exemptions by the hospital.
The consent decree states that Saint Vincent, from now on, "shall not require proof that an employee's or applicant's religious objection to vaccination be an official tenet or endorsed teaching of any religion or denomination."
The hospital also cannot conclude that a person's "religious belief, practice or observance is not sincerely held simply because (Saint Vincent) deems the belief, practice or observance unreasonable, inaccurate, unfounded, illogical or inconsistent in Saint Vincent's view."
Saint Vincent, which was founded by the Roman Catholic Sisters of St. Joseph of Northwestern Pennsylvania, stopped requiring all employees to get a flu shot after it joined Allegheny Health Network, Laurent said.

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