February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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CMS To Begin Vaccine Mandate Enforcement In Late January

In late December 2021, the Centers for Medicare & Medicaid Services (CMS) announced that on Jan. 27, 2022, it will begin enforcing its COVID-19 vaccine mandate for Medicare and Medicaid-certified providers and suppliers (covered entities).

All employees, contractors, and volunteers (affected persons) affiliated with covered entities must receive the first dose of a COVID-19 vaccine (or the single dose vaccine) prior to Jan. 27. Covered entities must also develop policies and procedures for vaccinating, tracking vaccinations, and providing exemptions and accommodations by that deadline. 

In addition, all affected persons must receive a second dose of their COVID-19 vaccine by Feb. 28, 2022.

The enforcement will be in place for Washington, D.C., the U.S. territories, and the 25 states where the mandate is not currently blocked by court orders. Those states are 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.

This mandate will remain unenforceable in the 25 states for which three courts have issued injunctions: 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.

In its new guidance, CMS makes clear that vaccination rates under 100 percent constitute noncompliance. However, covered entities will generally be given opportunities to achieve compliance under the enforcement action thresholds as follows:

  • Phase 1: Covered entities will not be subject to enforcement actions (e.g. plans of correction, civil monetary penalties, denial of payment, termination, etc.) if at least 80 percent of affected persons are vaccinated by Jan. 27, 2022, with a plan to achieve a 100 percent vaccination rate within 60 days after receiving noncompliance notice by CMS. 

  • Phase 2: Covered entities will not be subject to enforcement actions if at least 90 percent of affected persons are vaccinated by Feb. 28, 2022, with a plan to achieve a 100 percent vaccination rate within 30 days of notice by CMS.

Federal, state, accreditation organizations, and CMS-contracted surveyors will begin surveying for compliance at the end of January. 

Covered entities should consider reviewing all additional information and expectations for compliance specific to their provider or supplier type and monitor the CMS mandate closely, pending outcomes from the U.S. Supreme Court following oral arguments on the emergency district court injunctions.  

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume XII, Number 6

About this Author

Michael Grubbs, Barnes Thornburg Law Firm, Indianapolis, Healthcare Law Attorney

J. Michael Grubbs is a partner in the Healthcare Department. He serves as administrator of the department for the Indianapolis, Indiana office. His practice includes representation of healthcare providers before state and federal healthcare regulatory agencies and in related litigation matters. His work also includes resolution of reimbursement and regulatory compliance issues as well as structuring or restructuring ventures and transactions to avoid problems before they arise.

Prior to entering the practice of law in 1988, Mr. Grubbs worked in...

Mark E. Rust Barnes Thornburg Law firm Chicago Corporate Finance and Healthcare Law Attorney

Mark Rust is Managing Partner of the Chicago office of Barnes & Thornburg, LLP, and Chair of the firm’s national Healthcare Department. Mr. Rust concentrates his practice in transactional, regulatory and medical-legal issues affecting healthcare entities and provider organizations. For nearly 30 years he has written about or practiced in healthcare law, writing in a wide variety of publications from theJournal of the American Bar Association to USA Today. He is listed as a notable healthcare lawyer in Chambers USA, Top Healthcare Lawyers of Illinois,Superlawyers...

Laura D. Seng, Barnes Thornburg Law Firm, South Bend, Healthcare Attorney

Laura Seng is a partner in Barnes & Thornburg LLP’s South Bend, Indiana, office and is the chair of firm's national Healthcare Department. Ms. Seng concentrates her practice in regulatory compliance, transactional matters and medical-legal business issues for healthcare entities and individual providers. She is listed as a notable healthcare lawyer by Best Lawyers in America® and was recognized by her peers in Indiana Super Lawyers® as a “Rising Star” in healthcare law.  

Ms. Seng represents hospitals, physicians, multi-specialty clinics and healthcare...