CMS Vaccine Mandate Update
The CMS announced updated vaccination requirements for healthcare workers. While the nationwide vaccine mandate is on hold due to legal challenges, it will go into effect in 26 states this year. In response, the CMS has published a FAQ on COVID-19 vaccinations for healthcare workers. This article will provide an overview of the new vaccine requirements. We will also discuss the deadlines for compliance with the new mandates. We hope you find this article informative and helpful.
COVID-19 vaccination mandate expanded to include hospitals, dialysis facilities, ambulatory surgery centers and home health agencies
CMS has decided to expand the COVID-19 vaccination mandate to cover hospitals, ambulatory surgery centers, and home health agencies. The rule, issued on August 18, 2021, was the first step in the process. The agency will continue to work with states to implement the rule. It has not yet been decided if it will allow religious exemptions for employees.
In addition to expanding the COVID-19 vaccination mandate to include these facilities, the federal government has issued executive orders requiring vaccination of federal contractors and workers. Additionally, the Occupational Safety and Health Administration is developing a rule requiring businesses with more than 100 employees to vaccinate their employees and provide weekly testing. For more information, visit Taft’s website. It includes law bulletins on COVID-19 vaccination requirements as well as updates on the disease.
Under the interim final rule, providers and suppliers must vaccinate their staff against COVID-19. The vaccine is effective against the Delta variant of the virus. Vaccination helps to reduce the risk of serious illness or death caused by COVID-19. The interim final rule will be issued by CMS in October. The new requirement will apply to healthcare facilities and providers that receive Medicare or Medicaid reimbursement. In the interim, healthcare workers in affected facilities are required to start the vaccination process immediately. The interim final rule encourages facilities to utilize resources to comply with the mandate.
This rule has been implemented in New York State. Hospitals, ambulatory surgery centers and home health agencies will be required to vaccinate employees exposed to COVID-19. Further, the new regulations supersede the previous directives. They will be implemented on October 1.
While the policy is widely supported, hesitancy is a significant roadblock to the implementation of this mandate. Many hospitals and other health systems have been under a public health emergency and have been unable to vaccinate their staff because of vaccine hesitancy. The result is that over one thousand health-care workers have been exposed to COVID-19.
Texas’s state vaccine executive order in conflict with CMS rule
While the rules apply to federal workers, many employers that contract with the federal government are exempt from the Texas vaccination requirements. In these cases, employers should continue to follow the federal rules unless they are notified that they will be forced to comply by state law. Otherwise, they could be forced to take legal action to protect their workforce from the Zika virus. American Airlines and Southwest Airlines, both of which are based in Texas, have already notified employees about the impending mandate and are working to comply with it.
CMS has issued an interim final rule that follows the CMS mandate and allows for exemptions for medical conditions and sincerely held religious beliefs. While the CMS rule requires vaccinations for federal contractors, the executive order will likely preempt it for Texas-covered facilities. If an employer is subject to the interim final rule, it will likely require vaccination of all employees and weekly testing for COVID-19. However, CMS is also required to make sure the executive order is consistent with federal contractor mandates.
The Texas Order does not define personal conscience, so it is unclear whether individuals can object to the COVID-19 vaccine based on their religious convictions. Additionally, this Texas Order doesn’t provide any guidance regarding the legal basis for an individual’s objection to the vaccine. Because the Texas Order is vague, it is unclear if the state’s vaccination requirement will apply to any employee who objects to the mandate.
Although EO 40 remains in effect, the Governor’s office has not issued a clarification or explained how it would be enforced. However, many employers are continuing to roll out mandatory vaccination for their employees. Despite the conflicts, employers may be waiting until OSHA’s Emergency Temporary Standard is issued to see what effect this new rule will have. However, the pending OSHA Emergency Temporary Standard may have on the Texas vaccination mandate.
The Texas order is also at-will employment. In other words, both parties can decide to terminate the employment relationship. Moreover, the Texas order also limits the ability of entities to impose vaccination requirements. As a result, Texas’s state vaccination executive order is in conflict with federal rule. There are similar arguments against the Texas order, but these arguments are unlikely to win. This is the best argument that Texas employers have.
Enjoinment of CMS vaccine mandate in Missouri
A preliminary injunction has blocked CMS from enforcing its new vaccine mandate in Missouri, the first state to file suit against the new vaccine requirement. The court found that the COVID-19 pandemic does not serve as sufficient emergency justification for CMS to waive the notice-and-comment period. Instead, the injunction was based on an administrative failure by CMS to adequately justify the mandate.
In deciding to issue the preliminary injunction, the district court held that the CMS vaccine mandate was not constitutional because Congress had not explicitly granted it any authority. Furthermore, the mandate’s impact is so widespread that it raises significant federalism concerns. A mandate requires a clear grant of authority from Congress, and Missouri’s argument is that CMS failed to follow its own notice and comment requirements, and therefore did not show a “good cause” for avoiding the requirements.
As the plaintiff, the state of Missouri is challenging the new CMS vaccine mandate. The court ruled that the Mandate was arbitrary and capricious, because CMS had not adequately shown that the vaccine mandate prevented the spread of COVID-19 in health care facilities. The court cited the adverse impact of the mandate on state health laws and the unprecedented economic impact. However, it did not address the competing authority of CMS to dictate participation in federally administered programs. The court ruled that CMS’ rule violated the law because it circumvented notice and comment procedures and invoked a good-cause exception that does not exist in the statute.
The U.S. Court of Appeals for the Eighth Circuit denied the stay pending appeal, which means that the CMS vaccine mandate can no longer take effect in Missouri. The Missouri district court’s decision, however, is still unconfirmed and CMS will appeal the decision to the U.S. Supreme Court. The decision will likely result in the reinstatement of the rule. Further, the Missouri case is not a precedent-setting case for CMS vaccine mandates.
The enjoinment of the CMS vaccine mandate in Missouri does not prevent covered employers from enforcing mandatory vaccination policies in Missouri. It merely suspends the CMS vaccination mandate’s enforcement in Missouri until the injunction is lifted in all other states. If the CMS vaccine mandate is reinstated, covered employers should be prepared for this situation. There are no clear indications as to when this will happen, but covered entities in all states should be ready to meet its requirements.
In addition to the state requirements, the CMS vaccine mandate applies to certain types of healthcare providers. This includes certain Medicare-certified and Medicaid-certified facilities. Physician offices are not covered, but all employees, including new ones, must be vaccinated. It also applies to staff working under a contract or performing regular facility services must be vaccinated. Here’s a look at the CMS vaccine mandate compliance deadlines.
CMS has set two compliance deadlines for covered facilities: one for phase one, which was Jan. 27, and one for phase two, which is 60 days after the December 28 memorandum. In phase one, covered facilities must have a policy in place ensuring all staff members have received the vaccine. The second phase, meanwhile, requires covered facilities to have fully vaccinated staff without waiting for boosters.
In addition to civil monetary penalties, failure to comply with the CMS vaccine mandate can lead to termination of the provider’s participation in Medicare and Medicaid programs. CMS has stated that termination would occur only after an opportunity to correct the problem is offered. However, this process may lead to confusion for providers. So, it is best to comply with the requirements as early as possible. There are several ways for providers to achieve compliance.
The CMS also offers resources to help healthcare entities determine if the COVID-19 vaccine mandate applies to them. The FAQ offers a range of information. Phase 1 refers to ensuring that all employees are vaccinated with at least one dose. Phase 2 is more demanding, and requires complete vaccination of all staff members. It is advisable to check the deadlines for Phase 1 and Phase two to ensure that your healthcare facility will meet the requirements.
The next step is the compliance deadlines for the CMS vaccine mandate. By March 28, 2022, 80 percent of healthcare staff in hospitals must be vaccinated with the new COVID-19 vaccine. If the facility fails to reach this target, enforcement action may be looming. After all, the CMS has said that they acted within their authority, and therefore the compliance deadlines are not insignificant. So, what are you waiting for?