If you’re shaking your head, trying to understand how one vaccine mandate (for non-healthcare employers) was blocked while the one for healthcare workers remained in place, join the club. However, our source for all things HR – Fisher & Phillips LLC – clarified that the Supreme Court case was limited to deciding whether the rule could be enforced and not whether CMS had the power to issue the rule in the first place. Nuances for sure, but the rule’s effect on health care workers is unquestionable. Click here to read the original article on which this recap is based.
Prior to the SCOTUS ruling, CMS had been blocked from enforcing its rule in 25 states that challenged it. As of this writing, only Texas remains in the fight as it received a separate injunction which has not made its way to the Supreme Court as yet; however, experts predict its survival is unlikely.
What does the SCOTUS ruling mean for healthcare providers? First, it’s important to understand that this ruling does not affect all healthcare providers who simply receive funding from Medicare or Medicaid. It covers those employers deemed healthcare facilities, which is defined as those who go through the CMS certification process, requiring adherence to MCOP, and are subject to surveys. The list includes hospitals, SNFs and home health agencies, among other provider types. Medical practices and non-CMS-certified home health agencies are not included.
Unlike the OSHA ETS, CMS truly has a vaccination mandate, with no provision for weekly testing although it still must provide accommodations for medical reasons or sincerely held religious beliefs. The CMS mandate also applies to everyone considered staff of the covered facilities: employees, contractors, students, trainees and volunteers.
- By January 27, 2022, all facilities need to implement policies & procedures for staff vaccination and 100% of the staff (be mindful of the definition above) need to receive at least one dose of the vaccination. Those seeking exemption must have a pending request for, or been granted, an exemption. CMS did not release new deadlines for those states where the injunctions were lifted so they will need to meet the original timelines.
- By February 26, 2022, those facilities must ensure 100% of their staff have received the necessary doses to complete the vaccine series, have received an exemption or identified as entitled to a temporary delay as recommended by the CDC.
UPDATE for AR, AK, AZ, AR, GA, ID, IN, IA, KS, KY, LA, MS, MO, MN, NE, NH, ND, OH, OK, SC, SD, UT, WV & WY: CMS published a memorandum for providers on January 14, 2022 with the following revised deadlines: February 14, 2022 for P&P, first vaccine dose and pending exemptions (the former January 27th deadline), and March 15, 2022 for full staff vaccinations (the former February 26th deadline). Moreover, by February 14th, Federal, state, Accreditation Organization, and CMS-contracted surveyors will begin surveying for compliance with these requirements as part of initial certification, standard recertification or reaccreditation, and complaint surveys. Read the official memorandum here.
CMS’s stick is having the authorization to terminate a facility’s participation in Medicare and Medicaid if it fails to comply with the stated deadlines; however, as with any deficiency citation, providers have the ability to make corrections and come into compliance before termination.
The F&P 4-step priority list for healthcare facilities includes:
- Confirming that your organization meets the criteria for required compliance with the mandate.
- Developing policies & procedures that describe your process for assuring 100% vax of your staff as well as making sure they have received the first vaccine dose. Additionally, you need a process for handling accommodation requests and any precautions you will require for those who receive them. Analysts agree that CMS will begin inspecting facilities in the coming months to assure compliance.
- Make sure you seek legal counsel if your facility is in a state – like Florida – with laws that conflict with the CMS rule. You attorney can decipher the gray area as it applies to your business and save you from the costly ramifications of getting it wrong.
- Prepare for accommodation requests from those who have medical or religious reasons. Read F&P’s excellent primer on religious exemptions here.
Finally, the Florida Agency for Health Care Administration released employer forms developed by the Florida Department of Health. Check out this next blog for links to those forms.