July 2, 2022

Volume XII, Number 183

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CMS Resumes Enforcement of Vaccine Requirement in Half of States

While the Centers for Medicare & Medicaid Services (“CMS”) Omnibus COVID-19 Health Care Staff Vaccination Rule (“CMS Vaccine Requirement”) heads to the Supreme Court, CMS will resume enforcement in the half of U.S. states not currently covered by an injunction.

On January 7, 2022, the U.S. Supreme Court will hear arguments regarding the Vaccine Requirement and the injunctions currently in place in for about half of states. Previously, a federal district court had enjoined the rule nationwide, but the 5th Circuit Court of Appeals narrowed that injunction to states which were actually a party to the case. The Biden Administration appealed the injunctions in both that 5th Circuit case and in a case from the 8th Circuit, and the Supreme Court granted the administration’s emergency application.

During the period of the nationwide injunction, CMS had issued guidance clarifying that it would not be enforcing the Vaccine Requirement while preliminary injunctions were in effect. Now that the 5th Circuit has partially stayed the injunction, however, CMS will resume enforcement in the following states, which are not parties in the ongoing litigation: 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 and Wisconsin.

Pursuant to the new guidance, workers in covered health care facilities in these states will need to have obtained the first dose of a COVID-19 vaccine by January 27, 2022 in order for the facility to be considered compliant. While CMS will work with facilities, continued non-compliance may ultimately lead to civil monetary penalties or termination from federal health care programs, among other possible consequences.

Facilities should continue working on policies and procedures to comply with the Vaccine Requirement, though with the Supreme Court likely to weigh in soon, the situation is far from resolved.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 364
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About this Author

Jennifer L. Evans, Polsinelli PC, Denver, healthcare fraud matters lawyer, medicare reimbursements attorney
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Jennifer Evans brings legal, legislative and operational experience to health care matters. Her legal practice is focused on fraud and abuse, Medicare and Medicaid reimbursement issues, and regulatory compliance. Jennifer has experience working with clients that include multistate service providers to chronic patients, multistate pharmacies, Durable Medical Equipment companies, hospitals, physician practice managers, laboratories, health care management franchisors, and a specialty services extension of a physician practice.

Jennifer also served...

303.583.8211
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Colleen Faddick's practice includes advising clients regarding the structure of and relationships among health care providers and entities within the complex federal and state regulatory environment. Colleen focuses on Medicare and Medicaid reimbursement and enrollment issues and appeals, fraud and abuse and self-referral law issues, licensing and certification of health care entities, clinical trial compliance and agreements for sponsors and providers, medical device payment and manufacturer relationships with physicians. Colleen works with hospitals, large physician...

303.583.8201
Michael Flood, Polsinelli Law Firm, Health Care Attorney
Associate

Michael Flood takes a results-oriented approach to serving his clients’ legislative, regulatory, and policy needs. He is a proactive advocate for his clients on matters involving the U.S. Congress, the Centers for Medicare and Medicaid Services, and the Food and Drug Administration. Michael assists a broad range of clients including provider associations, patient advocacy groups, and device manufacturers on issues including reimbursement, compliance, and general health reform.

202-626-8363
Colleen E. Guinn Health Care Attorney Polsinelli Denver, CO
Associate

Colleen Guinn provides comprehensive representation and strategic counsel to a variety of health care providers, including hospitals and health systems, physician and specialty practice groups, individual health care professionals, home health agencies, and long-term care providers. Working closely with Polsinelli’s team of seasoned health care attorneys, Colleen develops legal solutions for clients’ challenges in an ever-changing health care industry.

Prior to joining Polsinelli, Colleen worked as a paralegal focused on representing clients in all stages of the patent litigation...

303-583-8285
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