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New Vaccine Requirement for Select CMS-Participating Facilities

Client Alert

On November 4, 2021, the Centers for Medicare and Medicaid (“CMS”) released a new rule requiring certain healthcare facilities to implement policies requiring employees to be vaccinated against COVID-19. It does not matter if a staff member does not perform patient treatment services, they must still be vaccinated if an employee of an applicable facility.

Particularly, staff at these facilities should be given at least the first dose of an accepted vaccine within 30 days of November 5, 2021. Phase 2 will require staff to have their second dose within 60 days of November 5, 2021. Acceptable vaccines include, and at this time are limited to, Pfizer, Moderna, and Johnson & Johnson.

Applicable Facilities

The new requirement does not apply to all facilities that provide healthcare services, but rather only those facilities that are regulated by CMS as one of the following:

  • Ambulatory surgical centers;
  • Hospices;
  • Programs of all-inclusive care for the elderly;
  • Hospitals;
  • Long-term care facilities;
  • Psychiatric residential treatment facilities;
  • Intermediate care facilities for individuals with intellectual disabilities;
  • Home health agencies;
  • Comprehensive outpatient rehabilitation facilities;
  • Critical access hospitals;
  • Clinics (rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech language pathology services);
  • Community mental health centers;
  • Home infusion therapy suppliers;
  • Rural health clinics/federally qualified health centers; and
  • End-stage renal disease facilities.

While a facility may render some of the services listed above, that does not necessarily mean that a facility is required to comply with the rule. For example, if a facility provides care for psychiatric patients, the rule still may not apply if the facility is not regulated by CMS as a psychiatric residential treatment facility.

Additionally, while many facilities identify as “clinics,” the rule states that there are only approximately 5,000 clinics who are Medicare and Medicaid-certified rural health clinics and federally qualified health centers. Therefore, without this qualification, the rule will not apply.

However, facilities who are not required to comply with this new rule should note that their facility may still need to follow the OSHA COVID-19 Employer Emergency Temporary Standard, which requires employers with more than 100 employees to be vaccinated, or undergo regular testing, among other requirements. For more information, read this client alert by BMD Healthcare Litigation Member Stephen Matasich. 

Staff Exemptions

Staff who work full-time remotely do not need to be vaccinated under the new rule.

However, staff members are still able to seek either bona-fide religious or medical exemptions to exclude them from the vaccine requirement. For those that are given an exemption, the facilities must ensure that reasonable accommodations are given to the employee, while still minimizing the risk of the spread of COVID-19. CMS refers to the Equal Employment Opportunity Commission’s (“EEOC”) website for further guidance on this topic.

Compliance/Discipline

Those facilities who do not comply with the new rule within the specified timeframe will be subject to civil monetary penalties, denial of payment, and, in extreme circumstances, exclusion from Medicare and Medicaid. CMS plans to oversee facilities through state surveyors, and has noted that interpretive guidelines outlining how surveyors will determine compliance will be published in the future. However, CMS has already stated that reviewing records of staff vaccinations, staff interviews, and review of facility vaccine policies and procedures are among some of the procedures that will be used to detect noncompliance.

Questions

If you have any further questions about the new rule or are unsure of whether it is applicable to your facility, please contact Labor + Employment Partner Bryan Meek at bmeek@bmdllc.com (330.253.5586) or Healthcare and Hospital Law Member Amanda Waesch at alwaesch@bmdllc.com (330.253.9185).

Bryan and Amanda will be hosting an informative webinar on Wednesday, November 17 at 2 PM ET to discuss who the new rule applies to, and if so, what steps should be taken to comply. Click here for more information and registration.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.