On November 5, 2021, the U.S. Secretary of Health and Human Services issued a rule amending the existing conditions of participation in Medicare and Medicaid to add a new requirement – that facilities ensure their covered staff are vaccinated against COVID–19. Challenges to the Centers for Medicare & Medicaid Services (CMS) vaccine mandate were filed in various courts across the nation, and the CMS mandate had been blocked in about half of the states. Then, after hearing oral arguments, on January 13, 2022, the U.S. Supreme Court decided that the CMS vaccine mandate should push forward across the nation.

As a result of this decision, CMS issued new guidance with updated compliance deadlines. Covered providers in Oklahoma, as well as the surrounding states of Arkansas, Kansas and Missouri, have until February 14, 2022, to comply with the Phase I deadline of the CMS vaccine mandate and until March 15, 2022, to comply with the Phase II deadline.

Unlike the OSHA ETS vax-or-test mandate, which reflected an arguably unprecedented attempt by OSHA to regulate vaccinations in the workplace, SCOTUS reasoned that facilities receiving Medicare and Medicaid funds have long been subject to conditions on receiving those funds, including requirements to maintain and enforce infection prevention and control programs designed to prevent the transmission of communicable diseases and infections. In its decision, SCOTUS agreed with the government that the Secretary is authorized to impose such conditions on the receipt of Medicaid and Medicare funds if necessary in the interest of the health and safety of the individuals who are furnished such services. SCOTUS also recognized that the Secretary routinely imposes such conditions of participation that relate to the qualifications and duties of healthcare workers themselves. Therefore, the nation’s highest court found that the Secretary did not exceed his statutory authority in mandating COVID-19 vaccines for the staff of CMS-covered facilities.

SCOTUS summarily dismissed other objections to the CMS mandate – such as a testing requirement, exceptions for “natural immunity,” and simply encouraging vaccination. Ultimately, the Supreme Court held that the challenges posed by a global pandemic, coupled with the exercise of authority that the Secretary has long been recognized to have, necessitated permitting the CMS mandate to go into effect. SCOTUS did not issue a decision on the CMS mandate on the merits. Rather, now, the CMS mandate goes into effect pending litigation on the merits in lower courts.

In the meantime, CMS has issued updated FAQs addressing new enforcement deadlines, in an endeavor to give facilities and surveyors sufficient preparation time to comply with the requirements of the rule following judicial decisions. As an exercise of enforcement discretion, CMS has set the following updated Phase I and Phase II compliance deadlines in the following states:

Potential penalties for noncompliance

Depending on the nature of the facility, failure to comply with the CMS vaccination mandate by the compliance deadlines could result in civil monetary penalties, denial of payments, and termination of participation in the Medicare and Medicaid programs. CMS has stated that termination would generally occur only after providing a facility with an opportunity to make corrections and come into compliance.

Upcoming deadline requirements

As a reminder, the Phase I deadline requires policies and procedures to have been developed and implemented for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact, are vaccinated for COVID-19, and 100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC. The Phase II deadline requires policies and procedures to have been developed and implemented for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact, are vaccinated for COVID-19, and 100% of staff have received the necessary doses to complete the vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series), or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC.

CMS continues to issue new guidance on its mandate, so covered providers should keep a close eye on additional developments.

CMS compliance packets available for Oklahoma employers

To assist private CMS covered providers in Oklahoma in complying with the CMS mandate, McAfee & Taft has developed and is now offering CMS Vaccine Mandate Compliance Packets for a flat fee of only $1,500. The CMS Packet contains a summary of the CMS regulations, including compliance deadlines; sample communication templates to be used to notify your workforce of the CMS requirements; a disability accommodation form in line with CMS regulations; practical how-to information about reasonable accommodations and the interactive process; and other forms to use for employees who request an accommodation from a CMS requirement. This packet also includes a survey for employers to complete, the answers of which will be utilized to create a CMS-compliant policy.