Updated Deadlines and Interpretive Guidance from CMS for Compliance with COVID-19 Vaccination Standards

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Updated January 21, 2022

In response to the U.S. Supreme Court’s decision on January 13, 2022, upholding the Health Care Staff Vaccination Standards for certain Medicare- and Medicaid- certified providers and suppliers necessary to participate in the Medicare and Medicaid programs,[1] Medicare- and Medicaid- certified health care facilities nationwide must take action to comply with the CMS guidance requiring health care facility staff COVID-19 Vaccination standards.

On January 20, 2022, CMS released the Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-11-ALL), applicable to Texas (the “Texas Guidance”). CMS had not previously included Texas in any prior guidance on the COVID-19 Vaccine standards, due to pending litigation concerning enforcement of the CMS COVID-19 Vaccine standards in the state of Texas. On January 19, 2022, this litigation was dismissed,[2] and CMS released the Texas Guidance shortly thereafter.

CMS had previously released the Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-07-ALL) on December 28, 2021 (the “Group 1 Guidance”) and the Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-09-ALL) (the “Group 2 Guidance”) on January 14, 2022.

The Group 1 Guidance sets forth timelines and guidance for compliance with the CMS COVID-19 Vaccine standards for state surveyors in states that were not party to the litigation (“Group 1 States”). The Group 2 Guidance sets forth revised timelines and guidance for compliance with the CMS COVID-19 Vaccine standards to help state surveyors determine the severity of a noncompliance deficiency in states that were party to the litigation before the U.S. Supreme Court (the “Group 2 States”).  The Texas Guidance sets forth revised timelines and guidance for compliance with the CMS COVID-19 Vaccine standards to help state surveyors determine the severity of a noncompliance deficiency in Texas.

Group 2 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. Group 1 States include all other states and jurisdictions except for Texas.

Under the Group 1 Guidance, the Group 2 Guidance, and the Texas Guidance, Medicare- and Medicaid- certified health care facilities must demonstrate that they developed and implemented policies and procedures to ensure that all facility staff, regardless of clinical responsibility or patient or resident contact, are vaccinated for COVID-19 (“COVID-19 Vaccination Policies and Procedures”).

Further, all such facility staff must obtain the necessary doses to complete the COVID-19 vaccine series within certain time frames (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series).

Below is a summary of the time frames set forth in the Group 1 Guidance, the Group 2 Guidance, and the Texas Guidance:

Policies and Procedures and First Dose Compliance Deadlines

Group 1

Group 2

Texas

Compliance Standard

Enforcement Action

January 27, 2022

February 14, 2022

February 16, 2022

Health care facilities must demonstrate that:

  • COVID-19 Vaccination Policies and Procedures have been developed and implemented; and
  • 100% of staff have received at least one dose of COVID-19 vaccine, a pending request for (or been granted) a qualifying exemption, or a temporary delay as recommended by the CDC.

A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action.

Second Dose Compliance Deadlines

Group 1

Group 2

Texas

Compliance Standard

Enforcement Action

February 28, 2022

March 15, 2022

March 17, 2022

Health care facilities must demonstrate 100% of staff have completed the COVID-19 vaccine series, been granted a qualifying exemption, or a temporary delay as recommended by the CDC.

A facility that is above 90% and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to additional enforcement action.

Facilities may be subject to enforcement action for failure to maintain 100% compliance with the CMS COVID-19 Vaccine standards after March 28, 2022, for Group 1 States, after April 14, 2022, for Group 2 States, or after April 18, 2022, for Texas. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).  CMS indicated that non-compliance does not necessarily lead to termination, and facilities will have opportunities to get back into compliance.

Provider-specific guidance for Medicare- and Medicaid- certified facilities in Group 1 States, Group 2 States, and Texas can be found at the links below:

For more information on the Interim Final Rule, please see the Benesch client bulletin regarding the Interim Final Rule (November 5, 2021) here.

For more information regarding the Supreme Court’s decision regarding the health care facility COVID-19 Vaccine standards, please see the Benesch client bulletin regarding the decision (January 14, 2022) here.


[1] Biden v. Missouri,595 U.S. ___, 1 (2022) at 4; 86 Fed. Reg. at 61561.

[2] State of Texas et al v. Becerra et al, Docket No. 2:21-cv-00229 (N.D. Tex. Nov 15, 2021).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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