November 17, 2021

Vaccine Mandate Update for Healthcare Providers

Bryan A. Schivera

Recently, the Centers for Medicare & Medicaid Services (CMS) published its Rule regarding vaccine mandates for most healthcare workers at certain healthcare facilities certified by CMS. This should not be confused with the Occupational Safety and Health Administration (OSHA) emergency rule also issued on Nov. 4, 2021, which does not apply to covered healthcare organizations (who were already covered by the Healthcare ETS issue in June 2021). The stay issued by the U.S. Court of Appeals for the Fifth Circuit against the OSHA Rule does not affect the CMS Rule. However, litigation challenging the CMS Rule has been initiated but no stay has been issued as of the date of this post.

The CMS Rule requires covered facilities to require all eligible staff to receive the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine by December 6, 2021. Full vaccination would be required by January 4, 2022. There is no weekly testing exemption in the CMS Rule. Covered facilities are the following listed Medicare and Medicaid certified providers and suppliers:

• Ambulatory Surgical Centers (ASCs) (§ 416.51)

• Hospices (§ 418.60)

• Psychiatric residential treatment facilities (PRTFs) (§ 441.151)

• Programs of All-Inclusive Care for the Elderly (PACE) (§ 460.74)

• Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children's hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities) (§ 482.42)

• Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes (§ 483.80)

• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) (§ 483.430)

• Home Health Agencies (HHAs) (§ 484.70)

• Comprehensive Outpatient Rehabilitation Facilities (CORFs) (§§ 485.58 and 485.70)

• Critical Access Hospitals (CAHs) (§ 485.640)

• Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (§ 485.725)

• Community Mental Health Centers (CMHCs) (§ 485.904)

• Home Infusion Therapy (HIT) suppliers (§ 486.525)

• Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) (§ 491.8)

• End-Stage Renal Disease (ESRD) Facilities (§ 494.30)

The Rule does not apply to physician offices, assisted living facilities, group homes, and community-based services or entities that do not provide services pursuant to contracts regulated by CMS. However, providers may be subject to other regulations and orders, including those issued by OSHA, Executive Orders or state mandates. Providers not covered under the CMS Rule may nevertheless have employees who, by virtue of their providing services inside a covered facility, fall under the Rule.

If they have not already, covered facilities should begin the process of creating and implementing a vaccine plan and policy to be distributed to employees. This plan should include practices for recordkeeping and legally required accommodations, among other things.

CMS has published a helpful PowerPoint and FAQ, which provides additional information. 

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