On Jan. 13, 2022, the U.S. Supreme Court allowed the Centers for Medicare & Medicaid Services (CMS) to move forward with its COVID-19 vaccine mandate requiring Medicare and Medicaid-certified providers and suppliers to vaccinate their staff. The next day, Jan. 14, CMS issued Guidance for implementation of the vaccine mandate.

Who is Affected by the Jan. 14 CMS Guidance?

The new Guidance applies 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. All other states (except Texas) must continue under the timeframes and parameters identified in CMS’s December 28, 2021 Guidance (QSO-22-07-ALL). Neither guidance applies to Texas at this time. 

The CMS vaccine mandate applies only to certain Medicare and Medicaid-certified providers and suppliers who are subject to Medicare and Medicaid Conditions of Participation (CoP), Conditions for Coverage (CfC), or Requirements for Participation (RFP).[1] The mandate does not apply to other entities, such as physician offices, that are not regulated by CMS. For entities subject to the mandate, all current staff and any new staff, regardless of clinical responsibility or patient contact must be vaccinated. Additionally, staff under contract or arrangement who provide care, treatment or other facility services on a regular basis must be vaccinated.

What is the Timeline for Compliance?

For states listed above who are subject to the Jan. 14, CMS Guidance, the following compliance deadlines apply:

By February 14, 2022

·        Policies and procedures must be developed and implemented for ensuring that all staff are vaccinated; and

·        100 percent of staff must receive at least one dose of the COVID-19 vaccine, or have a pending request for, or have been granted, a qualifying exemption.[2]

However, if at least 80 percent of the staff have received one dose of the vaccine by this date, and the facility has a plan to achieve 100 percent staff vaccination within 60 days, the facility will be deemed non-compliant but will not be subject to enforcement action.

By March 15, 2022   

·        Policies and procedures must be developed and implemented for ensuring all staff are vaccinated; and

·        100 percent of staff must be fully vaccinated (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series) or have been granted a qualifying exemption.

However, if the facility is above 90 percent by this date and has a plan to achieve 100 percent vaccination within 30 days, the facility will be deemed non-compliant but will not be subject to enforcement action.

By April 14, 2022

·        Facilities must attain 100 percent vaccination of its staff or they will be subject to enforcement action.

Is there Guidance specific to Provider Types?

Yes. Provider-specific guidance includes details regarding which staff must be vaccinated; the facility’s vaccination policies and procedures; vaccination exemptions; contingency plans for unvaccinated staff; and CMS enforcement. Guidance for specific providers can be found here:

·        Long-Term Care and Skilled Nursing Facility

·        Ambulatory Surgical Centers

·        Hospices

·        Hospitals

·        Psychiatric Residential Treatment Facilities

·        Intermediate Care Facilities for Individuals with Intellectual Disabilities

·        Home Health Agencies

·        Comprehensive Outpatient Rehabilitation Facilities

·        Critical Access Hospitals

·        Outpatient Physical Therapy

·        Community Mental Health Centers

·        Home Infusion Therapy

·        Rural Health Clinic/Federally Qualified Health Clinic

·        End-Stage Renal Disease Facility  

 To discuss this or other related issues, contact Andrew Alder by phoning (208) 562-4900 or send an email to aalder@parsonsbehle.com.

[1] The following is a full list of applicable providers and supplies: Ambulatory surgical centers; hospices; psychiatric residential treatment facilities; programs of all-inclusive care for the elderly; hospitals; long-term care (LTC) facilities; intermediate care facilities for individuals with intellectual disabilities; home health agencies; comprehensive outpatient rehabilitation facilities; critical access hospitals; clinics, rehabilitation agencies and public health agencies as providers of outpatient physical therapy and speech-language pathology services; community mental health centers; home infusion therapy suppliers; rural health clinics/federally qualified health centers; and end-stage renal disease (ESRD) facilities.

[2] COVID-19 vaccination policy must provide reasonable accommodations based on disability or sincerely-held religious beliefs, practices or observations that conflict with the vaccine requirement.