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Update on CMS Vaccine Mandate Update on CMS Vaccine Mandate

Update on CMS Vaccine Mandate

UPDATE: Our alert last week noted that on January 13, 2022, the U. S. Supreme Court lifted the injunction issued against the vaccine mandate ordered by the Centers for Medicare and Medicaid Services (“CMS”) for certain health care workers. On Friday, January 14, 2022, CMS issued an enforcement memo with respect to how the COVID vaccine mandate will be implemented for hospitals and other health care providers. CMS also issued specific guidance for each of the 14 types of covered health care facilities. This update generally summarizes the new guidance.
 

General Requirements


CMS’s guidance memo, identified as “QSO-22-09,” specifically applies to health care facilities in 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. An earlier memo was applied to the states that were not subject to the injunction in the case before the Supreme Court. Texas remains subject to a separate injunction. 

As a general matter, health care providers will be considered to be “in compliance” with the CMS vaccine mandate rules if the following conditions are met (note that the time periods do NOT include the 14-day waiting period for vaccine effectiveness—staff simply must have received the appropriate doses of vaccine by the applicable deadlines):

1. Within 30 days after issuance of QSO-22-09 (by February 13, 2022), a health care facility will be considered in compliance if it can effectively demonstrate that:
 
  • policies and procedures are developed and implemented for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact, are vaccinated for COVID-19; and
  • 100 percent of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC.
1. Within 60 days after the issuance of the memorandum (by March 15, 2022), the health care facility will be considered in compliance if it can effectively demonstrate that:
 
  • 100 percent of staff have received the necessary doses to complete the vaccine series (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, or identified as having a temporary delay as recommended by the CDC.
There is also an additional analysis for determining levels of enforcement and penalties for health care facilities that are not in full compliance by the deadlines noted above:
 
  • If, by February 13, 2022, less than 100 percent of all staff have received at least one dose of COVID-19 vaccine (or have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC), the facility will not be in compliance; however, if the facility has at least an 80 percent vaccination rate and a plan to achieve a 100 percent vaccination rate within 60 days, the facility will not generally be subject to an enforcement action (unless the facility poses a “threat” to patient health and safety).
  • If, by March 15, 2022, less than 100 percent of all staff have received all doses of vaccine (or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC), a facility will not be in compliance; however, if the facility has at least 90 percent of its staff vaccinated and a plan to achieve a 100 percent staff vaccination rate within 30 days, the facility would not be subject to additional enforcement action (unless the facility poses a “threat” to patient health and safety).
  • By April 14, 2022, if the facility fails to maintain compliance with the 100 percent standard, it is subject to enforcement action.

Additional Details/Guidelines

 
  • CMS has indicated that its “primary goal” is compliance, not enforcement (at least during the first 90 days). This is to be expected given all the back and forth on these regulations within the court system.
  • CMS has provided additional detail on how a facility may treat staff who have not completed their primary vaccination series and those who have exemptions from the vaccine requirement. For example, the specific guidance for hospitals includes a variety of enhanced protections:
    • Staff who have not completed their primary vaccination series must follow additional, CDC-recommended precautions, such as adhering to universal source control and physical distancing measures in areas that are restricted from patient access (e.g., staff meeting rooms, kitchen), even if the facility or service site is located in a county with low to moderate community transmission.
    • The hospital may require at least weekly testing for exempted staff and staff who have not completed their primary vaccination series, until the regulatory requirement is met, regardless of whether the facility or service site is located in a county with low to moderate community transmission, in addition to following CDC recommendations for testing unvaccinated staff in facilities located in counties with substantial to high community transmission.
    • The hospital may require staff who have not completed their primary vaccination series to use a NIOSH-approved N95 or equivalent or higher-level respirator for source control, regardless of whether they are providing direct care to or otherwise interacting with patients.
    • The hospital may consult with the local health departments to identify other actions that can potentially reduce the risk of COVID-19 transmission from unvaccinated staff.
    • Staff who have been granted an exemption to COVID-19 vaccination requirements should adhere to national infection prevention and control standards for unvaccinated health care personnel. 
We anticipate that as health care providers re-engage in establishing appropriate policies and procedures to comply with the CMS directives, additional questions will arise. Please reach out to Tami Earnhart, Paul Sinclair or any of Ice Miller’s Workplace Solutions Group lawyers for further discussion.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
 
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