Just days after the two federal courts issues preliminary injunctions against the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for health care workers, the agency published a memorandum announcing that it would be appealing both decisions, but would not enforce the rule while the cases work through the court system. In its’ December 2 memorandum, CMS acknowledged that the two courts’ injunctions cover all states, the District of Columbia, and the US Territories, and as a result, CMS will be suspending all activities related to the implementation and enforcement of the rule. What this means for nursing facilities, hospitals, and other providers covered by the rule, at least for now, is that CMS:
- will not enforce the vaccination requirement for health care workers
- will not the requirements for policies and procedures in Medicare/Medicaid providers and suppliers
- surveyors must not survey providers for compliance with the mandate
Because CMS’ appeal will include a request that the injunctions be stayed, the possibility remains that the agency may reverse its position prior to the January 4, 2022 deadline. CMS’ memorandum does, in fact, suggest that health care facilities may voluntarily choose to comply with the rule. We again encourage providers to submit formal comments to CMS detailing the potential impact of the mandate on your facility’s staffing and resident care as outlined here. In the meantime, we advise providers to be ready to undertake steps to ensure policies and procedures with both the mandate are ready to effectuate should the appellate courts lift the stay.