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Volume XII, Number 147

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CMS Requires COVID-19 Vaccination for Health Care Facility Staff

On November 4, 2021, the Centers for Medicare & Medicaid Services (CMS) issued an interim final rule that requires most Medicare and Medicaid certified providers and suppliers to vaccinate staff members within 60 days. The rule covers even those staff members who do not have direct patient contact, but includes some limited exemptions for staff who provide support services exclusively outside of the facility setting. 

Who Must Comply with the Rule?

The new rule applies to specific categories of providers that participate in the Medicare and Medicaid program: ambulatory surgery centers; hospices; psychiatric residential treatment facilities; programs of all-inclusive care for the elderly (PACE programs); hospitals (including acute care hospitals, psychiatric hospitals, long term care hospitals, and children’s hospitals); long term care facilities (including skilled nursing facilities and nursing facilities); intermediate care facilities; home health agencies; comprehensive outpatient rehabilitation facilities; critical access hospitals; clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services; community mental health centers; home infusion therapy suppliers; rural health clinics; federally qualified health centers (FQHCs); and end stage renal disease facilities.

The rule requires providers to develop policies and procedures to ensure that all staff are fully vaccinated for COVID-19. The policies and procedures must apply to facility staff who, regardless of clinical responsibility or patient contact, provide any care, treatment, or other services for the facility or its patients. This includes employees, licensed practitioners, students, trainees, and volunteers. Notably, the policy must also apply to individuals who provide care, treatment, or other services for the facility or its patients, under contract or by other arrangement.

CMS also expresses its intention that the rule preempt those state and local laws that would prohibit health care facilities from complying with a vaccine mandate.

Who is Exempt from the Rule?

The new rule does not apply to providers that do not participate in the Medicare or Medicaid program. The rule also does not directly apply to physician offices, organ procurement organizations, assisted living facilities, group homes, or home and community based service providers. However, CMS noted in the rulemaking that employees of these organizations may be subject to vaccine requirements through service agreements with regulated providers. For example, physicians who have medical staff privileges at a hospital would need to be vaccinated against COVID-19.

A facility that is required to develop and implement a COVID vaccination policy is allowed to exclude certain categories of staff members from the policy. Staff who exclusively provide telehealth or telemedicine services outside of the hospital setting and do not have any direct contact with patients and other staff do not need to be addressed by the policy. In addition, staff who provide services for the facility that are performed exclusively outside of the facility and who do not have direct contact with patients and other staff who are subject to the vaccine mandate do not need to be addressed by the policy.

CMS suggests when determining whether to require COVID-19 vaccination of an individual who does not fall into the above categories, the facilities should consider three elements: (1) frequency of presence, (2) services provided, and (3) proximity to patients and staff.

What Does the Rule Require?

There are three basic requirements of the new CMS rule.  Facilities subject to the new CMS rule must: (1) develop a process or plan for vaccinating all eligible staff against COVID-19, (2) develop a process or plan for providing exemptions and accommodations for staff members who are eligible for an exemption from the COVID-19 vaccine requirement, and (3) develop a process for tracking and documenting staff vaccinations and exemptions. 

Facilities must develop a plan for vaccinating staff members by December 5, 2021. In addition, by December 5, 2021, staff at all facilities must receive a first does of the primary vaccination series for a multi-dose COVID-19 vaccine prior to staff providing any care, treatment, or other services for the facility. By January 4, 2022, all facility staff, except those who have been granted exemptions, must be fully vaccinated for COVID-19. Staff who have completed the primary series for the vaccine received by the January 4, 2022 implementation date are considered to have met CMS requirements, even if the staff member has not yet completed the 14-day waiting period required for full vaccination.

Can the Facility Allow Any Staff Member Exemptions?

The facility’s COVID-19 plan must allow for medical and religious exemptions to the vaccine, in accordance with federal law.  For staff members seeking a medical exemption, documentation must be signed and dated by a licensed practitioner. The facility must also establish a contingency plan for staff members who are not fully vaccinated for COVID-19. 

CMS considered allowing facilities to require daily or weekly testing of unvaccinated individuals, but decided not to require such testing. Facilities may implement testing precautions in addition to vaccinat ion requirements. However, as currently written, vaccination for COVID-19 is the only option (unless a staff member is eligible for a medical or religious exemption), and testing is not an alternative to vaccination.

Other Vaccination Mandates

It is important to note that while an entity may be exempt or otherwise not be required to meet CMS’ vaccination requirements, entities may still be subject to other State and Federal COVID-19 vaccination requirements, such as those issued by Occupational Safety and Health Administration (OSHA). 

© 2022 Foley & Lardner LLPNational Law Review, Volume XI, Number 312
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About this Author

Claire Marblestone, health care lawyer, Foley and Lardner, Law firm
Partner

Claire Marblestone is a Partner and health care lawyer with Foley & Lardner LLP. Her practice focuses on transactional and health care regulatory matters, with an emphasis on HIPAA compliance, the Anti-Kickback Statute, Stark law, provider enrollment, and licensure and certification. She advises a number of clients, including hospitals, health systems and physician groups on regulatory and compliance issues presented by telemedicine and telehealth.

213-972-4822
Adam Hepworth,  Health Care Attorney, Foley Law Firm
Associate

Adam J. Hepworth is an associate and health care business lawyer with Foley & Lardner LLP. He is a member of the firm’s Health Care Industry Team.

Prior to joining Foley, Mr. Hepworth was a law clerk for Judge Harris L. Hartz on the United States Court of Appeals for the Tenth Circuit. He also interned in the San Francisco City Attorney’s health group and externed in the Civil Division of the United States Attorney’s Office in San Jose. Before he attended law school he was a policy intern for Sierra Health Foundation, where he worked on...

213-972-4604
Kara Schoonover Associate DC Health Care Cannabis
Associate

Kara Schoonover is an associate in the business law department of Foley & Lardner LLP. *Kara is admitted only in Maryland. She is practicing under the supervision of a member of the D.C. Bar.

Previously, Kara served as a summer associate in the firm’s Washington, D.C., office where she worked directly with partners in business, litigation, FDA, government contracting, and health care groups. In this role, she conducted legal research on compliance issues, including accidental and intentional adulteration for food companies, poison packing prevention for drug companies,...

202-295-4123
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