https://www.mcguirewoods.com/client-resources/Alerts/2022/1/cms-vaccine-mandate-enforcement-begins
On Jan. 13, 2022, the U.S. Supreme Court permitted the Centers for Medicare & Medicaid Services (CMS) to enforce its interim final rule requiring many Medicare- and Medicaid-certified providers and suppliers to vaccinate their staff for COVID-19. Based on this decision and added guidance issued by CMS, covered providers are now subject to three different key compliance deadlines, depending on their location.
Specifically, in final guidance memoranda released Jan. 14 and Jan. 20, 2022, CMS provided separate deadlines for providers in the 24 states subject to the injunction lifted by the Supreme Court plus Texas (which was subject to a separate injunction). These deadlines differ from the deadlines previously given to providers within the other 25 states and the District of Columbia that were not subject to the earlier lower court injunction — all of which have an initial deadline of Thursday, Jan. 27, 2022.
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Phase 2
By the Phase 2 deadline, the facility must ensure that 100 percent of its staff received the required doses to complete the COVID-19 vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series). Again, federally recognized exemptions and CDC-delayed dosing recommendations do not count against the facility.
Facilities without 100 percent of staff completing the COVID-19 vaccine series face noncompliance in the same manner as discussed above. However, CMS instructed surveyors that if 90 percent of a facility’s staff is fully vaccinated, and the facility has a plan to achieve a 100 percent staff vaccination rate within 30 days, then the facility would not be subject to additional enforcement action. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and type of facility.
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PS
The Centers for Medicare & Medicaid Services today released updated interpretive guidance on its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule for states affected by yesterday’s Supreme Court’s decision on the rule. The guidance does not apply to Texas, where the Interim Final Rule is still subject to a preliminary injunction in a separate legal action that was not before the Supreme Court. Under the guidance, the first dose compliance date for those states is Feb. 14, 2022, with full compliance expected from providers by March 15, 2022. For states not impacted by the Supreme Court decision, the previously announced compliance dates of Jan. 28 and Feb. 27 remain in effect. For both groups, the underlying interpretive guidance released on Dec. 28 applies and all members can still refer to the previously released Frequently Asked Questions for additional information.