Complying with the CMS COVID-19 Vaccine Mandate

Disclaimer: This situation is evolving daily, MagMutual recommends reviewing the latest guidelines for the most current information. Visit the MagMutual COVID-19 Resource Center to learn more.   

Executive summary:

On January 13, 2022, the Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard on Vaccination and Testing and allowed the Centers for Medicare & Medicaid Services (CMS) COVID-19 vaccine mandate to go into nationwide effect.

With the OSHA ETS blocked by the court, no organization, healthcare or otherwise, is subject to that rule. However, the CMS vaccine mandate stands. It applies to all CMS-certified facilities and providers that have a CMS Certification Number (CCN). The CMS mandate requires healthcare employees to be fully vaccinated against COVID-19 by March 15, 2022.

Recommended actions:

• While compliance with the OSHA ETS Vaccination Rule is no longer required, OSHA still recommends that large private physician practices consider vaccination requirements against COVID-19 for employees.
• CMS-certified facilities and providers with a CMS Certification Number (CCN) should develop a plan for tracking and ensuring that healthcare employees are fully vaccinated against COVID-19 by March 15, 2022.

For more detail, including information on compliance:

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) both published rules regarding COVID-19 vaccination mandates. On January 13, 2022, the Supreme Court allowed the CMS vaccine mandate to go into full effect and blocked OSHA’s implementation of the Emergency Temporary Standard.

OSHA ETS Vaccination Rule No Longer in Effect

OSHA’s Emergency Temporary Standard  (OSHA ETS Vaccination Rule) required private businesses with 100 or more employees (such as large physician practices) to implement a vaccine-or-testing mandate. With the Supreme Court ruling, private businesses with 100 or more employees are not required to comply with the OSHA ETS Vaccination Rule. However, private business can require vaccinations for their employees if allowed by state law. OSHA still recommends that employers require vaccinations.

CMS Vaccination Rule Still Applies to CMS-Certified Healthcare Facilities

The CMS Omnibus COVID-19 Health Care Staff Vaccination rule (CMS Vaccination Rule) requires that every employee at a Medicare-certified facility be vaccinated. It does not allow for a testing opt-out. The CMS Vaccination Rule applies to virtually all Medicare-certified facilities (such as hospitals, ambulatory surgery centers, home health agencies and long-term care facilities). These facilities are considered Medicare-certified facilities because they are accredited by DNV/The Joint Commission (or a similar accrediting agency on behalf of CMS) and have a CMS Certification Number (CCN).

The CMS Vaccination Rule does not apply to traditional outpatient private physician practices that accept Medicare payments. That means private physician practices are not subject to the CMS Vaccination Rule because private physician practices are not accredited by DNV/The Joint Commission and do not have a CNN.

The deadlines for healthcare workers to be fully vaccinated depend on whether their state challenged the CMS Vaccination Rule. Healthcare workers in states that were not a part of the litigation must be fully vaccinated by February 28, 2022. Healthcare workers in the states that challenged the CMS Vaccination Rule must be fully vaccinated by March 15, 2022. This extension applies to the following 24 states: 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.

Below is further information that can help you determine 1) whether your healthcare organization is subject to the CMS Vaccination Rule, 2) requirements you need to follow and 3) potential repercussions for healthcare organizations that fail to comply with the new regulations.   

Step 1: Determine whether your organization is subject to the CMS Vaccination Rule

• If you are a private physician practice (not certified by an accrediting agency on behalf of CMS such as DNV/TJC and do not utilize a CCN when billing), you are not subject to the CMS Vaccination Rule.
• If you are a healthcare facility certified by Medicare and have a CCN, you must comply with the CMS Vaccination Rule mandate.                                                 

The CMS Vaccination Rule applies to the following facilities:  

• Ambulatory surgical centers
• Clinics (rehabilitation agencies and public health agencies as providers of outpatient physical therapy and speech-language pathology services)
• Community mental health centers 
• Comprehensive outpatient rehabilitation facilities
• Critical access hospitals
• End-stage renal disease facilities
• Intermediate care facilities for individuals with intellectual disabilities
• Home health agencies
• Home infusion therapy suppliers
• Hospices
• Hospitals
• Long-term care facilities
• Programs of all-inclusive care for the elderly
• Psychiatric residential treatment facilities
• Rural health clinics/federally qualified health centers

Step 2: Determine requirements the CMS Vaccination Rule imposes on your organization

• The CMS Vaccination Rule requires covered providers and suppliers to implement mandatory vaccination policies.
• The CMS Vaccination Rule does not allow employers to provide a testing opt-out.
• Exemptions from the requirement are only available for healthcare workers with medical or religious reasons.
• The CMS Vaccination Rule does not have an employee threshold and applies to all Medicare-certified facilities regardless of the number of employees. 
• A “covered individual” under the CMS Vaccination Rule is broad and includes: employees, staff, practitioners, students, trainees, volunteers and even independent contractors who may use shared facilities (such as bathrooms, cafeterias and common areas) or interact with patients or employees. However, the rule does not apply to 100% remote/virtual workers.     
• The CMS Vaccination Rule requires that employers have a plan for tracking and ensuring that all employees (except those who are exempt) are vaccinated. This plan should also include procedures to mitigate the spread of COVID-19, a contingency plan to replace workers who do not comply and an application process for exemptions.    
• Nonexempt employees in the states not included in the national CMS Vaccination Rule litigation must be fully vaccinated by February 28, 2022. Nonexempt employees in the 24 states that challenged the CMS Vaccination Rule must receive their first dose of the vaccine by February 13, 2022, and be fully vaccinated by March 15, 2022.     

Step 3: Understand who is exempt

Employees who may be exempt under the CMS Vaccination Rule include:  

1. Employees who are unvaccinated because of a medical contraindication (such as severe allergic reaction to a previous dose of COVID-19 vaccine) 
2. Employees with a medical necessity that requires a delay (such as recent exposure to COVID-19, currently receiving antibodies, or immunocompromised status)   
3. Employees entitled to reasonable accommodations under Title VII of Civil Rights Act of 1964 (CRA) or the Americans with Disabilities Act (ADA)  

Additional information on employer-mandated COVID-19 vaccination and accommodations can be found here.   

Step 4: How to ensure that you abide by the CMS Rule

1. Implement mandatory vaccination policies to make sure all nonexempt healthcare employees are fully vaccinated by your state’s deadline.
2. Establish a process to ensure additional precautions to prevent the transmission and spread of COVID-19.
3. Continue to stay updated with OSHA and CMS vaccination policies.

Step 5: Understand penalties for failure to comply

CMS has indicated that it will provide certified facilities with a warning before enforcing penalties. Penalties for violating the CMS Vaccination Rule may result in civil fines, denial of payment for Medicare and Medicaid charges or even termination of the covered facility’s Medicare or Medicaid provider agreement.