Following the Supreme Court’s decision in Biden v. Missouri, CMS will require those states previously subject to federal district court injunctions to be compliant with the “Phase 1” requirements of its Interim Final Rule (“IFC”) as of February 14, 2022. These states include Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming. As elaborated in our prior guidance following the Supreme Court’s ruling, Phase 1 requires that the staff of health care providers subject to the IFC must have received, at a minimum, their first dose of a primary series or a single dose COVID-19 vaccine or been granted a lawful exemption prior to providing any care, treatment, or other services for the facility and/or its patients. “Staff” is broadly interpreted by the IFC to include facility employees, licensed practitioners, students, trainees, volunteers, and individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements. Providers must also have developed and implemented appropriate policies and procedures to ensure staff compliance.

The one exception to this deadline is Texas, whose health care providers have until February 22, 2022 to comply with Phase 1 requirements. Butler Snow attorneys stand ready to assist health care providers in implementing policies and procedures to ensure compliance of their programs with the IFC’s requirements.