On January 13, 2022, the Supreme Court of the United States (“SCOTUS”) issued two separate opinions regarding the November 5, 2021, CMS Vaccine Mandate and the November 5, 2021, OSHA ETS. In National Federation of Independent Business v. OSHA, SCOTUS ruled that while OSHA did have the authority to regulate occupational dangers, it did not have the power to so broadly regulate public health by mandating COVID-19 vaccination or testing in the workplace. Based on its finding, SCOTUS allowed the injunctions issued by the lower courts to remain in place, and as such, the OSHA ETS will not be implemented in its current form. In the CMS vaccine mandate case, Biden v. Missouri, the Court ruled that CMS did not exceed its authority when it issued its November 5, 2021, vaccine mandate and the injunctions from the lower courts are stayed and no longer apply. Health care providers must once again be prepared to fully comply with the CMS vaccine mandate or face potential enforcement actions.
As a reminder, on December 28, 2021, CMS issued a memorandum, QSO-22-07-ALL, titled Guidance for Interim Final Rule- Medicare and Medicaid Programs; Omnibus COVID-19 Health Staff Vaccination QSO-22-07-ALL (cms.gov). In the memorandum CMS laid out the deadlines associated with its vaccine mandate. Per the memorandum, Medicare and Medicaid certified facilities must comply with all requirements of the vaccine mandate. The compliance deadlines laid out in the memorandum are:
- By January 27, 2022, covered facilities must:
- Have policies and procedures developed and implemented for ensuring all facility staff are vaccinated against COVID-19; and
- Ensure that 100% of staff have received at least one dose of a COVID-19 vaccine, have a pending request for an exemption, or have been identified as appropriate for a temporary delay per CDC guidance.
If a facility meets these requirements, it will be considered to be compliant with the CMS mandate. If less than 100% of staff who are not exempted or delayed have not received at least one dose of the COVID-19 vaccine, the facility will be considered to be non-compliant with the mandate. The facility will receive notice of its non-compliance with the 100% standard. A facility that is above 80% and has a plan to achieve 100% staff vaccination within 60 days will not be subject to enforcement action(s). Facilities that do not meet these benchmarks could be subject to enforcement action.
- By February 26, 2022, covered facilities must:
- Have policies and procedures developed and implemented for ensuring all facility staff are vaccinated against COVID-19 and 100% of all staff have received at least one dose of a single-dose vaccine or all doses of a multi dose vaccine series (fully vaccinated), or have been granted an exemption, or have been identified as appropriate for a temporary delay per CDC guidance.
If a facility meets these requirements, it would be considered compliant under the CMS mandate. If the facility is deemed non-compliant with the mandate, it will receive notice of its non-compliance. A facility that is above a 90% vaccination rate and has a plan to achieve 100% staff vaccination within 30 days would not be subject to additional enforcement action(s). Facilities that do not meet these benchmarks could be subject to enforcement action.
- By March 27, 2022 and thereafter, covered facilities failing to maintain compliance with the 100% standard could be subject to enforcement action.
CMS has advised that surveyors will begin surveying for compliance with these requirements as part of initial certification, standard recertification or reaccreditation, and complaint surveys beginning January 27, 2022.
As part of the memorandum, CMS also issued provider specific guidance via Attachments to the memorandum (Attachments A-N). Attachment A, which applies to Long Term Care and Skilled Nursing, can be found here:
As always, please do not hesitate to contact us with any questions you may have regarding the status of the CMS Vaccine Mandate and how your organization should proceed.
Glenn Davis – firstname.lastname@example.org
David Marshall – email@example.com
Andy Dollman – firstname.lastname@example.org