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Covid-19 Vaccine Mandates

In November of 2021, the Centers for Medicare & Medicaid Services (CMS) issued an interim final rule which was effectively a nation-wide COVID-19 vaccine mandate for healthcare workers.

The mandate is applicable to the vast majority of Medicare and Medicaid certified providers and their employees. This interim final rule was immediately challenged by a number of states in multiple lawsuits. As a result of these lawsuits, federal courts in Missouri, Louisiana, and Texas granted temporary injunctions and the enforcement of the mandate was temporarily stayed in a total of 25 states. On January 13, 2022, the U.S. Supreme Court lifted the temporary injunction and reinstated the mandate in 24 of the 25 states. The lone remaining injunction was in Texas, but that too was lifted shortly thereafter on January 19th when the State of Texas non-suited their claim following the Supreme Court’s decisions in Biden v. Missouri and Becerra v. Louisiana.  Following the Supreme Court decisions, and the non-suit coming out of Texas, the vaccine mandate is for now once again applicable in every state across the country.

So, what does the vaccine mandate actually mean? In order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff are vaccinated against COVID-19.

The staff vaccination requirements apply to Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare and Medicaid health and safety standards known as Conditions of Participation or Conditions for Coverage. These facilities are required to have a process or policy in place to ensure that all applicable staff are vaccinated. The vaccination requirement applies to all eligible staff working at these facilities including employees, licensed practitioners, students, trainees, and volunteers. The rule essentially requires that each facility have policies and procedures in place to ensure that 100% of staff have received at least one dose of a COVID-19 vaccine within 30 days unless the individual has a qualifying exemption. The rule further requires that within 60 days all staff must have received the necessary doses to complete the vaccine series. CMS has stated that the timeline and deadlines for facilities in the 25 states which were impacted by the previous injunctions will be somewhat modified but has not yet released the specific deadline dates for those states, including Texas. The CMS vaccine mandate allows for some religious and medical exemptions based on existing federal law.

It is also worth noting that the mandate does not apply to all Medicare or Medicaid providers.

The rule issued by CMS contains a laundry list of facility types to which the rule applies. The list includes hospitals, hospice facilities, and long-term care facilities among many others. Notably absent from the list; however, are EMS service providers. The Centers for Medicare and Medicaid Services issued guidance on the rule which stated that the rule does not directly apply to EMS providers since they are not regulated by CMS health and safety standards. The guidance went on to state; however, that some EMS providers may be subject to the rule indirectly if an EMS provider contracts with a facility which is covered by the rule, such as a hospital or long-term care facility. In the coming days or weeks CMS will likely issue additional guidance for the 25 states where the rule had previously been enjoined. It is also entirely possible that there may be additional legal challenges to the rule in the future, but for the time being the mandate is in effect in every U.S. State.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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