CMS Releases Guidance for the Health Care Worker Vaccine Mandate

Between January 14 and January 20th, 2022, the Centers for Medicare and Medicaid Services (CMS) released separate guidance for three groups of states regarding the health care worker vaccine mandate. Effectively, the CMS mandate is now enforceable in all 50 states. Generally, the guidance outlines requirements and survey procedures for ensuring compliance with the mandate. Earlier, on January 13, the U.S. Supreme Court allowed enforcement of the CMS mandate.

Background of the Health Care Worker Vaccine Mandate

On November 4th, 2021, the Federal Register published an interim final rule created by the CMS. However, two U.S. District Courts issued preliminary injunctions against the rule’s implementation. Subsequently, on December 2nd, 2021, the CMS released a memorandum stating it would not enforce the interim final rule while there were court-ordered injunctions in place. Eventually, the Supreme Court ruled in favor of the health care worker vaccine mandate. Hence, the decision allowed the CMS to enforce its provisions. Likewise, a district court in Texas issued an order that effectively lifted the preliminary injunction against the rule’s implementation. In brief, the original published rule required staff working in Medicare- or Medicaid-certified providers to:

• receive a full vaccination against COVID-19 by January 4th, 2022, and
• to receive their first shot before December 6th, 2021.

However, the specific dates have since been updated within the CMS’s newly issued guidance.

January 14 CMS Vaccine Guidance

Specifically, the January 14 guidance applies to 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. Indeed, states not identified in this guidance must follow earlier December 28 guidance. Generally, the guidance requires covered facilities in these states to:

• Ensure workers receive the first dose of the COVID-19 vaccine within 30 days of the memorandum.
• Implement policies and procedures to comply with the rule.
• Ensure that all staff members are fully vaccinated within 60 days of the memorandum.

Furthermore, the CMS will exercise discretion in its enforcement of the deadlines. Namely, a covered facility may have more than 80% of its staff receive the first dose by the first 30 days, with 100% of staff receiving the first dose within 60 days. Likewise, a facility may have 90% of staff fully vaccinated by 60 days, with a plan for 100% staff vaccination within 90 days.

January 20 CMS Vaccine Guidance for Texas

Likewise, the Texas-specific guidance includes an identical timeline and list of requirements. However, the guidance offers a different implementation date of January 20. This delay allows some leniency in response to the recent decision by the federal district court within the state.