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With all the recent legal challenges to federal vaccine requirements, there's a lot of confusion about the status of not only the OSHA ETS but also the CMS mandate.
While the OSHA ETS has likely exhausted its chances of passing, the Supreme Court has allowed the CMS mandate to move forward per a recent ruling on Jan. 13 that overturned stays of the CMS mandate that had been applied to 25 states.
There are still court cases pending, although given the ruling, it would appear that those legal battles will face a significant challenge in getting the CMS mandate overturned.
In this article, we explain everything you need to know about the CMS and walk through what healthcare organizations need to be doing right now to prepare.
The CMS mandate, explained.
The Centers for Medicare & Medicaid Services (CMS) vaccine mandate was first announced in September 2021 as component of President Biden's sweeping vaccination plan that also included the OSHA ETS and federal contractor mandate. Broadly, this mandate would require vaccination of any staff working in healthcare facilities that participate in Medicare/Medicaid.
Let's explore some common questions about the CMS mandate:
1. What healthcare facilities are covered under the CMS mandate?
The CMS mandate applies to healthcare facilities regulated by Medicare, including:
- Ambulatory surgery centers (ASC)
- Clinics
- Community mental health centers
- Comprehensive outpatient rehabilitation facilities (CORF)
- Critical access hospitals (CAH)
- End-stage renal disease (ESRD) facilities
- Home health agencies (HHA)
- Home infusion therapy suppliers
- Hospices
- Hospitals
- Intermediate care facilities for individuals with intellectual disabilities
- Long-term care facilities
- Medicare federally qualified health centers (FQHC)
- Programs for all-inclusive care for the elderly organizations (PACE)
- Psychiatric residential treatment facilities (PRTF)
- Public health agencies as providers of outpatient physical therapy and speech-language pathology services
- Rehabilitation agencies
- Rural health clinics (RHC)
The CMS rule does not apply to most physician groups, even if they participate in the Medicare or Medicaid program.
2. How is the CMS mandate different from the OSHA ETS vaccine-or-test guidelines?
Unlike the OSHA ETS, the CMS mandate is a full vaccination mandate. There is no option for testing, although there are still provisions for accommodations based upon disability, medical reasons or sincerely held religious beliefs. Also, the CMS mandate applies to all staff in covered healthcare facilities, not just employees. This includes licensed practitioners, students, trainees and volunteers. The mandate also applies to any individual who provides care, treatment or any other service for the facility or their patients.
3. What are the compliance deadlines for the CMS mandate?
There are two sets of deadlines for states, depending on whether the state was one of the 25 where the stay had been in place or not.
For providers in the District of Columbia, U.S. territories and the 25 states where the stay was not in place, the deadlines are as follows:
- By January 27, CMS will expect covered facilities to have developed and implemented policies and procedures to ensure that all staff are vaccinated and that 100% of staff have received at least one dose of the vaccination, or have a pending request for, or have been granted a qualifying exemption.
- By February 26, those facilities must also ensure that 100% of staff have completed their vaccine series or have been granted a qualifying exemption.
The 25 states subject to these deadlines are California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.
For the 24 states in which the CMS had been stayed (until being lifted by the SCOTUS ruling), the deadlines are as follows:
- By February 14, covered facilities are expected to have developed and implemented policies and procedures to ensure that all staff are vaccinated and that 100% of staff have received at least one dose of the vaccination, or have a pending request for, or have been granted a qualifying exemption.
- By March 15, those facilities must also ensure that 100% of staff have completed their vaccine series or have been granted a qualifying exemption.
The 24 states subject to the deadlines above are 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.
What about Texas?
Texas is a special case in which the compliance deadlines have not been determined yet.
4. What happens in the event of non-compliance?
CMS has stated that within 90 days of the issuance of applicable guidance (on December 28, 2021 or January 14, 2022, depending on whether the state had been stayed or not), facilities that fail to maintain compliance may be subject to enforcement action.
That enforcement remedy for non-compliance is termination of the provider’s ability to offer Medicare and Medicaid services, although for nursing homes, home health agencies, and hospices, CMS may impose civil monetary penalties or deny payments. For CMS, however, the primary goal is to bring facilities into compliance. Termination or penalties would only occur after a facility is provided with an opportunity to make corrections and come into compliance.
What should healthcare employers be doing about the CMS mandate?
There are 4 things that healthcare providers need to consider when evaluating their next steps.
1. Confirm whether they are a covered facility.
Simply receiving Medicare or Medicaid funds does not by itself mean that a facility is covered by this rule. The rule only applies to certified providers which involves an application and surveying process, adherence to conditions of participation and being subject to period follow-up surveys. There is a list below that identifies the types of facilities that would qualify as a covered facility.
2. Roll out a facility vaccination policy aligned with CMS requirements.
If they are a covered facility, they need to be tracking vaccination status and issue a policy by January 27 (or February 14). The facility should determine and continue to track the vaccination status of its staff. Covered facilities should have developed policies describing how applicable tracking has been implemented along with compliance, recordkeeping documentation and training requirements. Also, procedures should have been implemented to ensure confidential consideration and responses to requests for accommodation, which would include any additional precautions that would be applicable to individuals who are granted accommodations. The facility needs to be prepared for CMS inspections, which will likely begin in the next few weeks or months.
3. Understand how the CMS mandate intersects with other orders.
They need to be aware of state laws or executive orders which conflict with the CMS mandate. Those states are primarily Florida, Texas, Tennessee and Montana. Usually, a federal law would prevail but with the litigation environment, facilities should be prepared for further legal challenges.
4. Have a plan to handle employee requests for accommodations.
As providers who may have already mandated vaccines are aware, employees will make requests for accommodations based on medical or religious reasons. Prompt and appropriate processing of those requests is crucial to complying with both the CMS mandate as well as other federal laws. It is critical to directly engage with employees in this interactive process and documenting that process and those efforts are extremely important.
Prepare for the CMS mandate
Complying with the CMS mandate doesn't have to be a logistical nightmare. Comply with the federal CMS mandate and make it as easy as possible for staff to submit proof of COVID-19 vaccination status with the BP Logix Vaccine Tracker.
