CMS issues guidance on health care vaccine mandate

Now that the Supreme Court has upheld the Centers for Medicare and Medicaid Services (CMS) vaccine mandate for COVID-19 (coronavirus), it’s time for covered entities to dig into the guidance and complete any compliance steps. In order to assist the regulated community with compliance, CMS has issued guidance for the first 25 states subject to the rule (including California, Oregon, and Washington) as well as guidance for the remaining states (including Arizona, Idaho, and Montana). Here’s the key information from the CMS employers need to know:

Background: As a reminder, CMS published its vaccine mandate on November 5, 2021, which required workers in most health care settings that receive reimbursements from Medicare or Medicaid to be vaccinated against COVID-19. The rule was challenged in multiple lawsuits, reinstated first in the 25 states that didn’t challenge the rule (including California, Oregon, and Washington), and ultimately reinstated in the remaining states (including Arizona, Idaho, and Montana) via the Supreme Court’s decision.
 
Guidance that applies to all covered employers: The two sets of guidance contain some important similarities, including:

• Enforcement discretion: A vaccination rate under 100 percent constitutes non-compliance with the rule, but CMS is exercising its enforcement discretion to provide the leeway detailed below for both sets of states and to determine the severity of non-compliance.
   
• Consequences for non-compliance (“enforcement actions”): Enforcement actions for nursing homes, home health agencies, and hospice can include civil monetary penalties, denial of payments, and ultimately termination of participation in Medicare and Medicaid. Enforcement action for hospitals and some other acute care facilities is limited to termination of participation in Medicare and Medicaid. However, every effort will be made to bring a facility into compliance before termination would ever take place.

Requirements for California, Oregon, and Washington:

• By January 27, 2022: Policies and procedures must be developed and implemented to ensure all facility staff are vaccinated. In addition, 100 percent of facility staff must meet one of the following conditions: (1) have received at least one dose of COVID-19 vaccine; (2) have a pending request for an exemption; (3) have been granted a qualifying exemption; or (4) have been identified as having a temporary delay as recommended by the Centers for Disease Control (CDC). Noncompliant facilities with vaccination rates above 80 percent that have a plan to achieve 100 percent vaccination within 60 days will not be subject to any enforcement other than a notice of non-compliance.
   
• By February 26, 2022: Policies and procedures must be developed and implemented to ensure all facility staff are vaccinated. In addition, 100 percent of facility staff must meet one of the following conditions: (1) have completed the vaccine series (i.e., single shot or multiple shots as needed); (2) have been granted a qualifying exemption; (3) or have been identified as having a temporary delay as recommended by the CDC. Noncompliant facilities with vaccination rates above 90 percent that have a plan to achieve 100 percent vaccination within 30 days will not be subject to any enforcement other than a notice of non-compliance.
   
• By March 28, 2022: Anything other than 100 percent compliance may result in enforcement actions.

Requirements for Arizona, Idaho, and Montana:

• By February 14, 2022: Policies and procedures must be developed and implemented to ensure all facility staff are vaccinated. In addition, 100 percent of facility staff must meet one of the following conditions: (1) have received at least one dose of COVID-19 vaccine; (2) have a pending request for an exemption; (3) have been granted a qualifying exemption; or (4) have been identified as having a temporary delay as recommended by the CDC. Noncompliant facilities with vaccination rates above 80 percent that have a plan to achieve 100 percent vaccination within 60 days will not be subject to any enforcement other than a notice of non-compliance.
   
• By March 15, 2022: Policies and procedures must be developed and implemented to ensure all facility staff are vaccinated. In addition, 100 percent of facility staff must meet one of the following conditions: (1) have completed the vaccine series (i.e., single shot or multiple shots as needed); (2) have been granted a qualifying exemption; (3) or have been identified as having a temporary delay as recommended by the CDC. Noncompliant facilities with vaccination rates above 90 percent that have a plan to achieve 100 percent vaccination within 30 days will not be subject to any enforcement other than a notice of non-compliance.
   
• By April 14, 2022: Anything other than 100 percent compliance may result in enforcement actions.

Tips: Health care employers in California, Oregon, and Washington have been subject to their own state-level vaccine requirements in addition to this one from the CMS, but to the extent they’re behind in complying with the CMS mandates, the guidance and leniency in enforcement will be helpful. For now, the latest state-level vaccination requirements for health care employers in California can be found in the California Department of Public Health (CDPH)’s State Public Health Officer Order, Health Care Worker Vaccine Requirement (December 22, 2021), which requires booster shots for eligible workers. In Oregon, see the Oregon Health Authority (OHA)'s amended temporary rule and accompanying FAQs. In Washington, see the governor's Proclamation 21-14.3 and accompanying FAQs.

Health care employers in Arizona, Idaho, and Montana should work to meet the compliance thresholds to avoid any enforcement actions. If you have any questions, including for Montana health care employers who are concerned about state law conflicting with the CMS mandate, contact your Vigilant Law Group employment attorney.