CMS Says it Will Enforce Staff Vaccine Mandate Where it Can

Surveyors will not implement or enforce the vaccination requirements issued under an interim final rule November 5 in the 25 states that have won an injunction to stop the mandate; in all other areas where CMS has authority, hospitals and other providers who participate in Medicare and Medicaid must have staff at least partially vaccinated within 30 days of the issuance of the January 27 memo.

Editor's note: This article was originally published by the HCPro Accreditation & Quality Compliance Center.

By January 27, hospitals in half of the nation’s states must ensure that all staff have at least one dose of the COVID-19 vaccine or have a qualified exemption, or face termination from the Medicare and Medicaid health insurance programs. By the end of February, staff must be fully vaccinated.

Surveyors will not implement or enforce the vaccination requirements issued under an interim final rule November 5 in the 25 states that have won an injunction to stop the mandate while the Biden-Harris administration rule winds its way through the courts.

Those states include 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, Texas, Utah, West Virginia and Wyoming, according to a Quality, Safety & Oversight Group memorandum issued on December 28.

In all other areas where CMS has authority, hospitals and other providers who participate in Medicare and Medicaid must have staff at least partially vaccinated within 30 days of the issuance of the memo—January 27—and fully vaccinated within 60 days. Since the 60th day falls on a Saturday, February 26, it will not be implemented until Monday, February 28, the following business day, according to CMS.

While the mandate does allow for staff to be granted certain exemptions from getting the vaccine, anything less than 100% compliance with one or the other option could result in civil fines followed by termination for nursing homes, home health agencies and hospice, and only termination from Medicare for all other providers.

Hospitals will be notified of non-compliance with the issuance of a CMS Form-2567, which specifies deficiencies.

Providers who can show policies and procedures that have achieved at least 80% compliance and a plan to achieve 100% by the time of the first deadline will be given a chance to reach full compliance, according to CMS. Those who have at least 90% compliance and a plan to reach full compliance by the end of February will also be given a chance to comply.

Various attachments to the memo outline provider-specific guidance for surveyors. The links to all of the attachments can be found here. 

The link to the hospital attachment is here, and offers step-by-step instructions for CMS state surveyors on how to enforce the vaccine requirements. Meanwhile, all four of the hospital accrediting organizations have said they are preparing their own procedures to enforce the CMS mandate.

The U.S. Supreme Court is expected to hear oral arguments on both the CMS and OSHA vaccine mandates on January 7, according to the American Hospital Association.

Originally, CMS had put all enforcement of its interim final rule on hold but decided on December 28 to push through with the states that were not under injunction.