The United States Supreme Court Allows CMS Vaccine Mandate to Proceed

On January 13, 2022, the Supreme Court of the United States upheld the CMS Vaccine Mandate. This means that nursing facilities and other health care providers who held off on mandating vaccines for staff and vendors pending the outcome of the case need to start getting into compliance now.

CMS Issued its Vaccine Mandate in November 2021

As a refresher, CMS issued an Interim Final Rule on November 5, 2021, requiring certain health care providers participating in Medicare and Medicaid to ensure that their staff are vaccinated against COVID-19 (the “Vaccine Mandate”). Following the issuance of the Vaccine Mandate, two separate District Courts enjoined its enforcement in twenty-five states, including Ohio. The Government appealed those decisions and asked the Supreme Court to stay, or stop, the injunctions.

In December, CMS Issued Enforcement Guidance for States Where Vaccine Mandate Was in Effect

Although the Vaccine Mandate was on hold through the stay in twenty-five states, on December 28, 2021, CMS issued a Memo to State Survey Agency Directors (QSO-22-07-ALL) providing enforcement guidance on the Vaccine Mandate, including specific survey directions for nursing homes. In the guidance, CMS noted the injunctions applicable in certain states, but advised that it would plan to begin enforcement of the Vaccine Mandate in those states where the injunctions were not in effect. In addition, CMS effectively delayed the deadlines for vaccination set by the Interim Final Rule by setting certain deadlines for facilities relating to the Vaccine Mandate at 30 days and 60 days after issuance of QSO-22-07-ALL.

Specifically, the CMS guidance declares:

Within 30 days after issuance of this memorandum, if a facility demonstrates that:

• Policies and procedures are developed and implemented for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and
• 100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is compliant under the rule; or
• Less than 100% of all staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is non-compliant under the rule. The facility will receive notice of their non-compliance with the 100% standard. A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action. States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Within 60 days after the issuance of this memorandum, if the facility demonstrates that:

• Policies and procedures are developed and implemented for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and
• 100% of staff have received the necessary doses to complete the vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series), or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is compliant under the rule; or
• Less than 100% of all staff have received at least one dose of a single-dose vaccine, or all doses of a multiple-dose vaccine series, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is non- compliant under the rule. The facility will receive notice of their non-compliance with the 100% standard. A facility that is above 90% and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to additional enforcement action. States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Within 90 days and thereafter following issuance of this memorandum, facilities failing to maintain compliance with the 100% standard may be subject to enforcement action.

The Supreme Court Decision Upheld the Vaccine Mandate

On January 13, 2021, in a 5 to 4 ruling, the Supreme Court overturned the stays issued by the District Courts, effectively allowing CMS to proceed with enforcement of the Vaccine Mandate in all states. The Supreme Court reasoned that the Secretary of Health and Human Services has statutory authority to issue regulations governing providers participating the Medicare and Medicaid programs, including regulations to ensure that healthcare providers protect their patients’ health and safety.

Notably, the Supreme Court stayed the OSHA Mandate on the same day, finding that, unlike CMS, OSHA did not have the authority to issue its mandate.)

This Means Nursing Homes Need to Work on Compliance NOW

Some nursing homes have proceeded in preparing for the Vaccine Mandate to go into effect, whether by personal choice, because the Vaccine Mandate was not stayed in their state, or because they wanted to get a jump on implementation if the Vaccine Mandate was upheld. However, those nursing homes who have not begun to implement a Vaccine Mandate policy will need to act promptly in order to get into compliance and meet the CMS enforcement deadlines.

Luckily, CMS promptly acted to allow those nursing homes located in those states affected by the Supreme Court's decision some additional time to get into compliance. On January 14, 2022, CMS issued an additional Memo to State Survey Agency Directors (QSO-22-09-ALL) providing survey guidance applicable to Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. While guidance did not change from the previous CMS Memo, the deadlines for enforcement for these states run from January 14, 2022. Consequently, the 30-day and 60-day deadlines for these 24 states will fall on February 13, 2022, and March 15, 2022, respectively. (The previous enforcement dates still apply to those states covered by the prior Memo.)

EVOLVE’s Vaccine Mandate Implementation Packet is Available to Help Nursing Homes

EVOLVE has the materials that nursing homes need to implement the Vaccine Mandate. The COVID-19 Vaccine Mandate Implementation Packet includes:

• COVID-19 Staff Vaccine Mandate Policy;
• Sample memo to staff announcing the CMS COVID-19 Vaccine Mandate;
• Medical exemption guidance and materials, including staff request and approval forms;
• Religious exemption guidance and materials, including staff request and approval forms; and
• Addendum to contracts requiring vendors and other contractors to comply with the COVID-19 Vaccine Mandate Addendum.

You can purchase EVOLVE’s COVID-19 Vaccine Mandate Implementation Packet from the EVOLVE Store for $499.

If you are a previous purchaser, you can login to your account to download updated materials reflecting the new enforcement dates from QSO-22-07-ALL. In addition, EVOLVE will continue to update the COVID-19 Vaccine Mandate Implementation Packet to account for any additional guidance from CMS or other developments relating to the Vaccine Mandate.