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CMS Updates Healthcare Worker Vaccine Mandate Guidance

CMS said facilities in most states challenging the healthcare worker vaccine mandate must have their workers fully vaccinated by March 15.

Jacqueline LaPointe
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Published: 18 Jan 2022

CMS has issued interpretative guidance on its healthcare worker vaccine mandate following the Supreme Court’s decision to allow the mandate to be enforced while some states challenge it in courts.

The guidance released a day after the Supreme Court ruling states that facilities participating in Medicare and Medicaid in 24 states must ensure their employees have at least one dose of a COVID-19 vaccine by Feb. 14, 2022. Employees must be fully vaccinated by March 15, 2022.

The new compliance deadlines specifically apply to the following states: 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.

CMS said the guidance specifically does not apply to Texas at this time and surveyors in that state should not seek to implement or enforce the final rule requiring the vaccine mandate for healthcare workers.

Facilities in states not identified in the guidance are expected to abide by compliance deadlines set in a Dec. 28, 2021, memorandum. That document requires facilities to have their employees fully vaccinated by Feb. 25.

Failure to comply with the healthcare worker vaccine mandate could result in termination from the Medicare and Medicaid programs, according to the latest guidance. Nursing homes, which are required to implement a vaccine mandate policy under a separate rule, are also subject to civil monetary penalties and claim denials if they do not comply.

Termination is the sole enforcement remedy CMS can take for non-compliance among hospitals and other acute and continuing care providers. However, the agency clarified that that its “primary goal is to bring [healthcare] facilities into compliance” before terminating them from Medicare and Medicaid programs per Conditions of Participation.

The guidance stresses though that facilities failing to maintain compliance with the healthcare worker vaccine mandate within 90 days after the issuance of the guidance will be subject to enforcement action. The guidance as released on Jan. 14, 2022.

Surveyors contracted by CMS will begin surveying for compliance with the vaccine mandate by Feb. 14. They will be surveying as part of initial certification, standard recertification or reaccreditation, and complaint surveys.

CMS has provided more specific guidance by facility type on its website.

In a statement following the Supreme Court’s ruling last week, CMS Administrator Chiquita Brooks-LaSure said the agency is “extremely pleased the Supreme Court recognized CMS’ authority to set a consistent COVID-19 vaccination standard for workers in facilities that participate in Medicare and Medicaid.”

“CMS’ vaccine rule will cover 10.4 million health care workers at 76,000 medical facilities. Giving patients assurance on the safety of their care is a critical responsibility of CMS and a key to combatting the pandemic,” Brooks La-Sure continued.

COVID-19 vaccines have reduced the risk of severe disease and protect both patients and healthcare workers from contracting the virus, the CMS leader emphasized.

However, the agency, according to Brooks-LaSure, is disappointed that the Supreme Court did not back the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard requiring private employers to implement vaccine mandates for their employees.

“The bottom line is that vaccine requirements work and are an important tool to protect patients – and also to keep our [healthcare] workers healthy,” Brooks-LaSure said.

Supreme Court OKs Vaccine Mandate for Healthcare Workers

The Supreme Court ruled Thursday that the federal government can enforce a final rule mandating healthcare workers to be vaccinated against COVID-19 while cases challenging the mandate are being appealed.

In a 5 to 4 decision, the Supreme Court agreed that the final rule mandating the vaccine for healthcare workers in facilities participating in Medicare and/or Medicaid “fits neatly within” the authority Congress has granted to HHS to impose conditions on federal funds.

“After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm,” an opinion released alongside the decision stated. “It would be the ‘very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.’”

The final rule originally required healthcare workers to have at least their first shot by Dec. 6, 2021, and be fully vaccinated by Jan. 4, 2022, unless workers had medical or religious reasons for exemption. HHS estimated that the rule would impact approximately 10.3 million people working in hospitals and other healthcare settings.

Several states challenged the final rule and eventually won their cases, with the United States District Court for the Eastern District of Missouri and United States District Court for the Western District of Louisiana issued preliminary injunctions against the implementation of the vaccine mandate in states involved in the cases.

HHS suspended enforcement of the vaccine mandate for healthcare workers in light of the court decisions, but later reinstated the mandate in all states not involved in the cases. Currently, the government is enforcing the mandate in about half of the states, 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 federal department also updated compliance deadlines, requiring Medicare and Medicaid facilities to have their staff vaccinated with the first dose of a COVID-19 vaccine by Jan. 27, 2022. Staff must be up to date on COVID-19 immunization by Feb. 28, 2022.

In a statement Thursday, the American Hospital Association (AHA) said it will work with hospitals to comply with the COVID-19 vaccine mandate.

“Now that the Supreme Court ruling has lifted the ban on the CMS vaccine mandate, the AHA will work with the hospital field to find ways to comply that balances that requirement with the need to retain a sufficient workforce to meet the needs of their patients,” stated Rick Pollack, AHA president and CEO.

“[W]e urge any [healthcare] providers that are not subject to the CMS requirement to continue their efforts to achieve high levels of vaccination. We must continue to work together as a field to use vaccines as the powerful tool that they are to protect everyone in our communities,” Pollack continued.

AMA responds to Supreme Court ruling

The American Medical Association (AMA) released a statement Thursday on the Supreme Court's ruling. The statement says:

"While the American Medical Association (AMA) is pleased by today’s opinion allowing the Center for Medicare and Medicaid’s (CMS) interim rule requiring COVID-19 vaccines for health care workers to take effect, we are deeply disappointed that the Court blocked the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard for COVID-19 vaccination and testing for large businesses from moving forward.

Workplace transmission has been a major factor in the spread of COVID-19. Now more than ever, workers in all settings across the country need commonsense, evidence-based protections against COVID-19 infection, hospitalization, and death — particularly those who are immunocompromised or cannot get vaccinated due to a medical condition. In fact, recent data released by United Airlines shows that before their own vaccine requirement went into effect, on average, more than one United employee was dying each week from the virus; however, today, none of their vaccinated workers are currently hospitalized with COVID-19 despite breakthrough infections and 3,000 current positive employees."

AMA urges large employers to "to do their part to safeguard their workforces and communities so we can defeat this COVID-19 pandemic together."

Article was originally published on Jan. 13, 2022.

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