In response to the U.S. Supreme Court's decision on January 13, 2022, upholding the Health Care Staff Vaccination standards for certain Medicare- and Medicaid- certified providers and suppliers necessary to participate in the Medicare and Medicaid programs,1 Medicare- and Medicaid- certified health care facilities in all states (except Texas) now must take action to comply with the CMS guidance requiring health care facility staff meet COVID-19 Vaccination standards.
On January 14, 2022, CMS released an updated Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-09-ALL) (the "Group 2 Guidance"). The Group 2 Guidance sets forth revised timelines and guidance for compliance with the CMS COVID-19 Vaccine standards to help state surveyors determine the severity of a noncompliance deficiency in states that were party to the litigation before the U.S. Supreme Court (the "Group 2 States").
CMS had previously released the Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-07-ALL) on December 28, 2021 (the "Group 1 Guidance"). The Group 1 Guidance sets forth revised timelines and guidance for compliance with the CMS COVID-19 Vaccine standards for state surveyors in states that were not a party to the litigation (the "Group 1 States").
Group 2 States include: 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.
Group 1 States include all other states and jurisdictions except for Texas. Neither the Group 1 Guidance nor the Group 2 Guidance applies to Texas as there is still pending litigation concerning enforcement of the CMS COVID-19 Vaccine standards in Texas.
Under the Group 1 Guidance and the Group 2 Guidance, Medicare- and Medicaid- certified health care facilities must demonstrate that they developed and implemented policies and procedures to ensure that all facility staff, regardless of clinical responsibility or patient or resident contact, are vaccinated for COVID-19 (the "COVID-19 Vaccination Policies and Procedures").
Further, all such facility staff must obtain the necessary doses to complete the COVID-19 vaccine series within certain time frames (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series).
Below is a summary of the time frames set forth in the Group 1 Guidance and the Group 2 Guidance:
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Policies and Procedures and First Dose Compliance Deadlines |
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Group 1 |
Group 2 |
Compliance Standard |
Enforcement Action |
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January 27, 2022 |
February 14, 2022 |
Health care facilities must demonstrate that:
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A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action.
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Second Dose Compliance Deadlines |
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Group 1 |
Group 2 |
Compliance Standard |
Enforcement Action |
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February 28, 2022 |
March 15, 2022 |
Health care facilities must demonstrate 100% of staff have completed the COVID-19 vaccine series, been granted a qualifying exemption, or a temporary delay as recommended by the CDC. |
A facility that is above 90% and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to additional enforcement action. |
Facilities may be subject to enforcement action for failure to maintain 100% compliance with the CMS COVID-19 Vaccine standards after March 28, 2022, for Group 1 States or after April 14, 2022, for Group 2 States. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.). CMS indicated that non-compliance does not necessarily lead to termination, and facilities will have opportunities to get back into compliance.
Provider-specific guidance for Medicare- and Medicaid- certified facilities in Group 1 States and Group 2 States can be found at the links below:
- Long Term Care Facilities, Group 1 States or Group 2 States
- Ambulatory Surgery Centers, Group 1 States or Group 2 States
- Hospices, Group 1 States or Group 2 States
- Hospitals, Group 1 States or Group 2 States
- Psychiatric Residential Treatment Centers, Group 1 States or Group 2 States
- Intermediate Care Facilities for Individuals with Intellectual Disabilities, Group 1 States or Group 2 States
- Home Health Agencies, Group 1 States or Group 2 States
- Comprehensive Outpatient Rehabilitation Facilities, Group 1 States or Group 2 States
- Critical Access Hospitals, Group 1 States or Group 2 States
- Outpatient Physical Therapy Facilities, Group 1 States or Group 2 States
- Community Mental Health Centers, Group 1 States or Group 2 States
- Home Infusion Therapy Providers, Group 1 States or Group 2 States
- Rural Health Clinics & Federal Qualified Health Clinics, Group 1 States or Group 2 States
- End Stage Renal Disease Facilities, Group 1 States or Group 2 States
For more information on the Interim Final Rule, please see the Benesch client bulletin regarding the Interim Final Rule (November 5, 2021) here.
For more information regarding the Supreme Court's decision regarding the health care facility COVID-19 Vaccine standards, please see the Benesch client bulletin regarding the decision (January 14, 2022) here.
Footnote
1 Biden v. Missouri,595 U.S. ___, 1 (2022) at 4; 86 Fed. Reg. at 61561.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
