CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule – UPDATE

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On December 15, 2021, in the continuing roller coaster of events surrounding the federal vaccine mandates, the U.S. Court of Appeals for the Fifth Circuit issued an Order removing the nationwide injunction against the CMS health care facility staff vaccine mandate but allowed the injunction to remain in place for the 14 challenging states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio). Thus, qualifying health care facilities subject to the mandate in Maryland are, arguably, subject to the rule. We expect additional guidance regarding implementation in light of the division in implementation amongst the states.

As a reminder the, CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule went into effect on November 5, 2021 but was subsequently challenged— first by the 14 states listed above who were successful in obtaining a preliminary injunction or “ban” on implementation (that applied only to them), and subsequently by a separate legal action which resulted in a nationwide injunction. The December 15th decision lifts the nationwide injunction but leaves the ban in place only for the 14 states. The Rule requires covered facilities to “establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021. All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022.” Covered entities include “Medicare and Medicaid-certified provider and supplier types (collectively, “facilities”) that are regulated under the Medicare health and safety standards known as Conditions of Participation (CoPs), Conditions for Coverage (CfCs), or Requirements.”