January 31, 2023

Volume XIII, Number 31


January 31, 2023

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January 30, 2023

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Public Sector Application of CMS’ COVID-19 Health Care Vaccination Rule

Key Takeaways:

  • The Rule only applies to Medicare- or Medicaid-certified facilities and their contractors having contact with patients or staff

  • The Rule does not apply to school districts receiving Medicare or Medicaid funding

  • The Rule may apply to public sector service providers such as EMS and ambulance authorities who contract with Medicare or Medicaid-certified facilities

Since we published our January 14 alert on the Supreme Court's rulings on the OSHA and Centers for Medicare & Medicaid Services' (CMS) vaccination mandates, we have heard several questions about the impact of the CMS COVID-19 health care vaccination rule on various public sector entities either receiving Medicare and Medicaid funding or providing health-related services to the public, including ambulance and EMS services. We also have been asked whether employees of third-party contractors to public entities are subject to the rule.

CMS has provided helpful FAQs addressing these questions.

Scope and Application of the Interim Rule

  • The interim rule applies to health care providers who care for Medicare and Medicaid patients in hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities and more. Specifically, any governmentally owned hospital, health facility or community mental health center which is a Medicare- or Medicaid-certified facility will need to follow the rule. This is also true of any third-party contractors who provide care, treatment or other services for these facilities or their patients.

  • The mentioned facilities must require their employees, volunteers, contractors and other workers to receive the COVID-19 vaccine. The rule also applies to employees and third-party contractors who interact with and provide care to patients or other staff outside of these facilities, such as home health care or offsite meetings.

  • The rule does not apply to facilities which are not Medicare- or Medicaid-certified facilities. For example:

  • Even though many schools receive Medicare or Medicaid funding, they are not regulated under CMS health and safety regulations and do not need to comply with the rule.

  • EMS providers are not regulated by CMS. Nonetheless, some EMS providers and ambulance authorities may be subject to the rule if they contract to provide services to a Medicare- or Medicaid-regulated facility, including hospitals and long-term care facilities.

State and Regional Guidance

State and local law may impose different regulations or guidance (e.g., legislative action, executive order, health department order) that can go beyond the rule. The rule is not a limit. 

© 2023 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XII, Number 24

About this Author

Amanda Van Dusen Public Finance Attorney Miller, Canfield, Paddock and Stone Detroit, MI

After more than 35 years in practice, Amanda Van Dusen continues to distinguish herself as one of the most successful and influential public finance attorneys in the State of Michigan. Amanda has been recognized for her public finance work by Best Lawyers in America every year since 2003 and she was named Detroit Public Finance Lawyer of the Year in both 2015 and 2017.

Amanda's practice includes a wide array of public law clients including the City of Detroit, school districts (K-12 and higher), airports, counties and solid waste management authorities as bond counsel in...

James Crowley Principal Detroit Attorney Finance Business Law Miller Canfield

Jim Crowley is a member of the Firm's Public Finance Practice Group and concentrates his practice in the areas of school finance, election and general school business law.

Jim has extensive experience in school finance and regularly serves as bond counsel, note counsel and disclosure counsel for public schools, public school academies, and other issuers. In these capacities, he has served as counsel relating to general obligation, unlimited and limited tax bond financings, energy conservation project financings, tax-credit bond financings,...

Deja M. Davis Associate Attorney Detroit Michigan Employment Labor Miller, Canfield, Paddock and Stone, P.L.C.

Deja Davis is an associate in Miller Canfield's Employment and Labor Group. She earned her J.D. with honors from the University of Detroit Mercy School of Law, where she was the Moot Court Executive Director of External Competitions, president of the Black Law Students Association, and Student Chair Member of the Diversity Committee. She earned her B.S. at Pennsylvania State University, where she was a Dean's List honoree and All-Academic Big Ten honoree as a member of the track and field team.

Deja previously served as a law clerk for Lakeshore...

Robert T. Zielinski Labor & Employment Attorney Miller, Canfield, Paddock and Stone Chicago, IL

Robert T. Zielinski provides creative and effective representation and advice in resolving the multitude of issues that arise in today’s complex employment relationships.

This includes, but is not limited to, union organizing, negotiations and arbitrations; litigation of individual or class employment claims over discrimination, wages, benefits and so forth; and proactive advice on managing situations to avoid post-decision disputes.