CMS Vaccine Mandate

On November 4, Centers for Medicare & Medicaid Service (CMS) issued its Staff Vaccination Mandate “interim final rule.” The rule applies to Medicare and Medicaid-certified providers and suppliers including:

• Ambulatory Surgery Centers
• Community Mental Health Center
• Comprehensive Outpatient Rehabilitation Facilities
• Critical Access Hospitals
• End-Stage Renal Disease Facilities
• Home Health Agencies
• Home Infusion Therapy Suppliers
• Hospices, Hospitals
• Intermediate Care Facilities for Individuals with Intellectual Disabilities
• Clinics
• Rehabilitation Agencies
• and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Federally Qualified Health Centers, and Long Term Care facilities.

The mandate covers all staff working at a facility (including physicians with hospital privileges). It also covers staff providing services offsite, but not individuals who spend all of their time working remotely.

The regulation requires healthcare providers to comply with the vaccination requirement in two phases. By December 5, 2021, staff at all healthcare facilities covered by the regulation must have received a first dose of a primary series or single dose COVID-19 vaccine prior to providing any care, treatment or other services. By January 5, 2022, all staff must be fully vaccinated (excluding boosters).

Interestingly, unlike the Occupational Safety and Health Administration (OSHA) mandate issued on the same day, the CMS mandate does not require testing for the unvaccinated. The regulation also allows for medical and religious exemptions. The regulation also allows for vaccination delayed due to clinical precautions.

The regulations are also different from the OSHA mandate in that they do not dictate certain procedures for unvaccinated individuals. Rather, regulations direct healthcare facilities to develop a process for implementing additional precautions for any unvaccinated staff. Facilities are simply directed to mitigate the transmission and spread of COVID-19.

CMS explains how its regulation “complements” the OSHA mandate. The June 21, 2021, OSHA Emergency Temporary Standard directed at the healthcare sector continues to apply. In addition, the OSHA vaccine mandate will cover healthcare employers with 100 or more employees. The regulations also make it clear that CMS believes that the supremacy clause of the constitution will cause the CMS regulation to preempt any conflicting state law.