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CMS Releases Guidance on COVID-19 Vaccinations for Health Care Workers

On January 13, 2022, the Supreme Court of the Unites States allowed the vaccine requirement for workers in health care settings that receive Medicare or Medicaid reimbursement to go into effect in 24 states in which it was previously enjoined.

On December 28, 2021, the Center for Medicare and Medicaid Services (CMS) released guidance on its Interim Final Rule establishing requirements regarding COVID-19 vaccinations for all workers in health care settings that receive Medicare or Medicaid reimbursement and announced that it will begin enforcing the mandate in health care facilities in the District of Columbia, U.S. territories, and the 25 states where it is not currently judicially enjoined (California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin).

The guidance from CMS provides additional information on the enforcement and compliance assessment mechanisms of the Interim Final Rule. Facilities in these states and territories must now comply with phase 1 of the mandate, requiring all staff in affected facilities to have received at least one dose of a COVID-19 vaccine by January 27, 2022. All staff in the affected facilities will be required to have received their second dose of a COVID-19 vaccine by February 28, 2022. CMS outlined that enforcement mechanisms for nursing homes, home health agencies, and hospice to come into compliance may include civil monetary penalties, denial of payments, and – as a final measure – termination of participation from the Medicare and Medicaid programs. For hospitals and other acute and continuing care providers, termination is noted as the sole enforcement remedy for non-compliance. To encourage compliance, CMS also stated that it will use further enforcement discretion and not subject facilities to additional enforcement action in the following scenarios:

  • Within 30 days after issuance of the memorandum, facilities demonstrate above 80% compliance and have a plan to achieve a 100% staff vaccination rate within 60 days;
  • Within 60 days after issuance of the memorandum, facilities demonstrate above 90% compliance and have a plan to achieve a 100% staff vaccination rate within 30 days.

CMS indicated that when penalties become necessary, they might be lower for those facilities that make a good-faith effort to comply with the mandate and can provide evidence that they have taken “aggressive” steps to vaccinate all staff. Federal, state, Accreditation Organization, and CMS-contracted surveyors will begin surveying facilities for compliance on January 27, 2022. Complete guidance for the Interim Final Rule can be found here.

With ongoing legal challenges to this federal mandate and the anticipated Supreme Court special hearing on January 7, 2022, there are a number of potential outcomes for the Biden Administration’s federal mandates that will impact state policies moving forward, ranging from enjoining the mandate for healthcare workers in all states to lifting the injunction currently in place for the remaining 25 states.

State Actions
With the federal mandates for large employers blocked — and with further anticipated litigation on the separate mandate for federal contractors — states have enacted their own vaccination mandates or bans on such mandates. Use the map to find the status of these individual state efforts.

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