Ten States Question CMS COVID-19 Vaccination Mandate | Baker Ober Health Law


On November 10, 2021, the states of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire (requesting states ) filed an action in U.S. District Court for the Eastern District of Missouri. challenging the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule of November 5, 2021 with Comment Period (IFC) titled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination ”(CMS Vaccine Mandate) 86 Fed. Reg. 61,555 (November 5, 2021). Below, we explain what the CMS mandate on vaccines requires and how legal challenge can impact those requirements.

What does the CMS mandate on vaccines require?

CMS’s immunization mandate requires a wide range of Medicare-certified healthcare facilities, providers and providers to ensure that their employees (part-time and full-time), licensed practitioners, volunteers, students, interns and under -treaters are all vaccinated. The Mandate applies to people who provide care, treatment or other services to the establishment and / or its patients, under a contract or other arrangement. In addition, the Terms of Reference apply to facilities that are governed by the CMS Terms of Participation, Coverage Terms or Requirements and therefore subject to CMS health and safety regulations. Here are some examples of such installations:

  • Hospitals
  • Ambulatory surgery centers
  • Home Health
  • Hospice
  • Qualified nursing facilities

Other types of providers, such as medical offices, are not directly subject to CMS’s immunization mandate (but may be indirectly). If your facility is covered by the Mandate, all of your “eligible personnel” must be vaccinated regardless of clinical responsibility or patient contact. Eligible personnel must receive their first dose of vaccine by December 5, 2021 and their second dose by January 4, 2022. There are very narrow exceptions to this requirement, which apply to personnel with medical exemptions, exemptions religious or those who work 100% remotely. .

Thus, all covered facilities must implement a plan to:

  • Ensure that all eligible personnel are vaccinated within the above deadlines;
  • Receive and assess exemption requests;
  • Provide accommodations for those who are exempt (such as regular testing, physical distancing, source control);
  • Adequately monitor and document staff vaccinations; and
  • Ensure suppliers are in compliance.

Failure to comply with the mandate could result in enforcement remedies available to CMS, such as civil monetary penalties, denial of payment, and termination of Medicare and Medicaid programs.

Why are the requesting states contesting the mandate?

The plaintiffs challenge CMS’s vaccine warrant on several grounds, claiming the warrant is arbitrary and capricious, against the law, beyond CMS’s statutory powers and issued in violation of procedural law. The specific allegations include that the warrant infringes on state policing powers and that CMS did not have the authority to issue a “waiver for cause” of the formal notice and comment period generally required for such a warrant.

One of the main concerns raised in the complaint is the prediction that many healthcare workers will choose to quit their jobs instead of getting vaccinated, resulting in an even greater shortage of healthcare workers. With low immunization rates in rural and underprivileged areas and among members of racial and ethnic minority communities, the complaint alleges that “minority workers in rural communities are among the groups most likely to lose their jobs under of the mandate “. The validity of this prediction and the merits of these legal challenges remain to be seen.

What if you are covered by the CMS Vaccine Mandate?

If you are covered by the mandate, you need to work on compliance, as the CMS mandate on vaccines remains in effect. The applicant declares that he requests that the warrant be canceled and that CMS be prevented from executing it. However, no emergency request for an order to stay the execution of the warrant has been filed and no order to stay the execution has been made.

Covered facilities should strive to implement an immunization plan within the above timelines, an accommodation plan for those who are exempt, and a staff immunization tracking and documentation plan.


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