Following Thursday’s Supreme Court decision in Biden, etal. v. Missouri, et al., No. 21A240; and Becerra, et al. v. Louisiana, et al., No. 21A240 (Jan. 13, 2022) the Centers for Medicaid and Medicare’s (“CMS”) requirement that healthcare providers certified to accept Medicaid or Medicare mandate COVID-19 vaccination for their employees, CMS issued updated guidance to the 24 states impacted by the decision.
As a reminder, CMS issued a memo in December 2021 providing updated guidance to the states not subject to the then-pending Supreme Court litigation, which laid out new deadlines for compliance with the mandate. CMS has also clarified that its original mandate applied only to Medicare- and Medicaid- certified facilities and not to assisted living facilities, or providers of home- and community- based services. In its newest memo, CMS provides updated deadlines for vaccination for the states impacted by Thursday’s decision. Both the December 2021 and the January 2022 memoranda, are very clear that Facility staff vaccination rates under 100% constitute noncompliance under the rule and will receive a notice of noncompliance. However, facilities with more than 80% of workers vaccinated within thirty days of each memo and a plan to achieve a 100% staff vaccination rate by the sixtieth day will not be subject to additional enforcement action.
Of course, both the December 2021 and the January 2022 memoranda also necessitate compliance with federal non-discrimination and civil rights laws and protections, including providing reasonable accommodations to individuals who are legally entitled to them because they have a disability or sincerely held religious beliefs, practices, or observations that conflict with the vaccination requirement. Providers in noncompliance outside of the 30- and 60- day grace period thresholds and disability and religions exemptions above, will be subject to additional enforcement actions that will depend on the severity of the deficiency and the type of facility, but may include plans of correction, civil monetary penalties, denial of payment, and, as a last resort, termination from the program.
The details of the various CMS’ memoranda and its impact on different states are below:
| State | Applicable CMS Memo | First Deadline for Vaccination | Second Deadline for Vaccination |
| 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, Wisconsin, Wyoming and Washington, DC and territories | QSO-22-07-ALL | January 27, 2022 | February 28, 2022 |
| 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 | QSO-22-09-ALL(January 14, 20221) | February 13, 2022 | March 15, 2022 |
| Texas | QSO-22-07-ALL | N/AEnforcement suspended pending the outcome of Texas vs. Becerra | N/AEnforcement suspended pending the outcome of Texas vs. Becerra |
Given the continued complexity of the matter, Stotler Hayes advises all providers to stay informed as to the ever-changing myriad of regulations and court interpretations of the same, and to immediately take efforts to finalize internal vaccination policies and procedures, including protocols for exemptions and timeframes for compliance.
Author: Kelly Hayes | Co-Founder & Partner
