Jason D. Gregoire, Esq. | January 20, 2022
On November 5, 2021, the Centers for Medicare and Medicaid Services (CMS) published an interim final rule (IFR) that requires healthcare workers at facilities that receive Medicare and Medicaid reimbursement to be fully vaccinated against COVID-19 by January 4, 2022. Thereafter, 24 states including New Hampshire sued CMS to enjoin enforcement of the IFR in U.S. federal district courts in Louisiana and Missouri. After both courts enjoined enforcement of the IFR, the Fifth and Eighth Circuit Courts of Appeals denied CMS’s requests to lift the injunctions. CMS then appealed to the U.S. Supreme Court who ruled in CMS’s favor on January 13, 2022 in the consolidated cases of Biden v. Missouri et al. and Becerra v. Louisiana, et al.
The Supreme Court, in a 5-4 decision, held that U.S. Secretary of Health and Human Services, Xavier Becerra, did not exceed his statutory authority when he issued the IFR. The Court reasoned that Congress has authorized the Secretary to impose conditions on the receipt of Medicare and Medicaid funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Because the Secretary determined that COVID-19 vaccinations will significantly reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients, the Court held the Secretary was authorized to issue the IFR in response to the global pandemic. The Court grounded its ruling on the fact that CMS already requires healthcare facilities to adopt infection control measures, and most states require healthcare workers to be vaccinated against various diseases such as influenza and Hepatitis-B.
After the Court issued its decision, CMS extended the deadlines for those healthcare workers in the 24 states who were parties to the lawsuits (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) to obtain COVID-19 vaccinations. Under guidance by CMS issued on January 14, 2022 found here (Guidance for the Interim Final Rule – Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination), healthcare workers including employees, contractors, volunteers and students who are not granted a religious or medical exemption must receive their first dose by February 14, 2022 and final dose by March 15, 2022. In addition, facilities in these states must demonstrate that they have developed policies and procedures governing staff vaccinations by February 14, 2022. Non-exempt healthcare workers in the remaining 25 states plus the District of Columbia and the territories (Texas is exempt because of a separate lawsuit it filed) must receive their first dose by January 27, 2022 and their final dose by February 28, 2022.
In the CMS guidance linked above, CMS explained that its surveyors will begin assessing IFR compliance upon expiration of the compliance deadlines. Potential sanctions for non-compliance range from citations for immediate jeopardy and conditional or standard noncompliance. If, ultimately, a facility fails to comply after an opportunity for correction, it could face civil monetary penalties, denial of Medicare or Medicaid payment, or termination from participation in Medicare or Medicaid programs.
On the same day the Supreme Court upheld the IFR, it stayed enforcement of the Occupational Safety and Health Administration’s (“OSHA”) large-employer COVID-19 vaccination rule that would have required employers with 100 or more employees to mandate vaccination for their staff or have staff produce a weekly negative COVID test. The Court held that OSHA had exceeded its statutory authority in adopting this mandate. My colleague, James Reidy’s helpful article regarding the Court’s ruling and recommended next steps for employers can be found here: (U.S. Supreme Court Grants Temporary Stay to OSHA’s ETS Vaccine Mandate – So What Do Covered Employers Do Now?)
As a result of the Supreme Court’s ruling on the IFR and the pending compliance deadlines, healthcare facilities should promptly adopt the required policies and procedures to ensure that its employees, contractors, volunteers and student interns or residents are either vaccinated or have been approved for an exemption by the compliance dates set forth above. Our prior article concerning the IFR and its requirements can be found here: (Healthcare Staff Must Be Vaccinated by January 4, 2022 – CMS Issues Interim Final Rule With Comment Period)