Saturday, January 22, 2022: In Response to Supreme Court Ruling, CMS Issues Final Guidelines Implementing Vaccine Mandate for Healthcare Facilities in 25 States Where the Mandate Was Previously Enjoined
Following the Supreme Court’s ruling in Biden, et al. v. Missouri, et al. validating the Centers for Medicare & Medicaid Services’ (“CMS”) Interim Final Rule requiring COVID-19 vaccination of healthcare workers, CMS issued two guidelines implementing the vaccination requirement in the 25 states where the mandate was previously enjoined by court order. The first Guidance issued on January 14th set forth requirements for compliance with the Interim Final Rule in the 24 states subject to the previous court rulings in Missouri, et al. v. Biden, et al. and Louisiana, et al. v. Becerra, et al. The second Guidance issued on January 20th set forth requirements for compliance in Texas. Similar to the initial Guidance issued December 28, 2021 we previously discussed, the two guidelines require compliance with the Interim Final Rule in the states subject to the guidelines.
Thus, Medicare- and Medicaid-certified healthcare providers and suppliers in 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 must comply with 30/60/90-day deadlines for staff vaccination working off the January 14th issuance date as follows:
- Within 30 days from January 14, 2022, for a facility to be fully compliant it must demonstrate that:
- It has developed and implemented policies and procedures to ensure 100% vaccination of covered employees against COVID-19; and
- 100% of the staff must receive at least one dose of a COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption.
Should the facility have less than 100% compliance, the CMS will issue a notice of non-compliance. A facility that is above 80% vaccination but has a plan to achieve 100% vaccination within 60 days would not be subject to an enforcement action. Otherwise, the facility could be subject to a variety of enforcement actions, such as plans of correction, civil monetary penalties, denial of Medicare or Medicaid payments, and/or termination of contracts.
- Within 60 days from January 14, 2022, for a facility to be fully compliant it must demonstrate that:
- It has developed and implemented policies and procedures to ensure 100% vaccination against COVID-19; and
- 100% of the staff must receive at least one dose of a COVID-19 vaccine or must have obtained a qualifying exemption.
Should the facility have less than 100% compliance, the CMS will issue a notice of non-compliance. A facility that is above a 90% vaccination rate and has a plan to achieve 100% vaccination within 30 days would not be subject to an enforcement action. Otherwise, the facility could be subject to enforcement actions, such as plans of correction, civil monetary penalties, denial of Medicare or Medicaid payment, or termination of contracts.
- Within 90 days and thereafter from January 14, 2022, facilities failing to maintain compliance with the 100% standard may be subject to an enforcement action.
Medicare- and Medicaid-certified providers and suppliers in Texas must comply with the same requirements, but only within 30/60/90-days from January 20, 2022.
With the issuance of these two guidelines, CMS has now provided guidance and instruction to all facilities in all 50 states for compliance with the Interim Final Rule requiring vaccination of staff.