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Last week, the U.S. Supreme Court struck down the COVID-19 vaccine-or-test mandate for employers with more than 100 employees (the OSHA ETS) and upheld the COVID-19 vaccination mandate for employees of health care providers who receive Medicaid or Medicare funding (the CMS rule).

What This Means for Healthcare Providers

Health care providers – regardless of number of employees – who receive Medicaid or Medicare funding must require their employees to be fully vaccinated against COVID-19. The vaccination requirements apply to Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare health and safety standards known as Conditions of Participation (CoPs), Conditions for Coverage (CfCs), or Requirements[1]. Provider and supplier types to which the vaccine mandate applies are as follows:

• Ambulatory Surgery Centers
• Community Mental Health Centers
• 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
• Long-Term Care Facilities

According to CMS, the vaccination mandate applies to employees, licensed practitioners, students, trainees, and volunteers regardless of clinical responsibility or patient contact. The mandate also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements. The mandate is not limited to staff who perform their duties solely within a formal clinical setting, as many health care staff routinely care for patients and clients outside of such facilities (e.g. home health, home infusion therapy, etc.). However, individuals who provide services 100% remotely and who do not have any direct contact with patients and other staff (e.g., fully remote telehealth or payroll services) are not subject to the CMS vaccine mandate.

In late December, a handful of federal courts halted the vaccine mandate in 25 states[2]. For the other states in which the mandate remained effective, CMS announced a January 27, 2022, deadline for phase 1 implementation, and February 28, 2022, deadline for Phase 2 implementation. The regulation requires providers to establish a process or policy to fulfill the vaccination requirements over two phases.

For Phase 1, within 30 days after the guidance is posted, staff at health care providers included within the regulation must have received, at a minimum, the first dose of a primary series or a single dose COVID-19 vaccine prior to staff providing any care, treatment, or other services for the provider and/or its patients. Providers with below 100% compliance will receive notice of their noncompliance but as long as the provider is above 80% and has a plan to achieve 100% staff vaccination within 60 days, it will not be subject to additional enforcement action.

For Phase 2, within 60 days after the guidance is posted, staff at health care provider and supplier types included in the regulation must complete the primary vaccination series (except for those who have been granted exemptions from the COVID-19 vaccine or those staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by CDC). If the deadline falls on a weekend or federal holiday, it will be effective on the next business day. A provider that is above 90% on this date and has a plan to achieve a 100% staff vaccination rate within 30 days will not be subject to additional enforcement action.

CMS has not yet indicated whether this implementation timeline will be effective for the states in which the CMS mandate was on hold or if implementation will be slightly delayed. CMS should issue guidance on this and other matters soon, though it is not advisable for providers to delay implementation of mandatory vaccination efforts for their employees.

For More Information

For questions, please reach out to Daphne Kackloudis (dlkackloudis@bmdllc.com). Also, check out BMD’s Employment Law After Hours episode discussing the Supreme Court’s decision and what it means for employers and the future of the OSHA ETS regulations: https://youtu.be/8SZWzErB-H8.

[1] CoPs, CfCs, and Requirements are foundational health and safety standards. These standards cover 21 health care provider and supplier types.

[2] 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, Texas, Utah, West Virginia, and Wyoming