OFCCP Week in Review: January 2022 #5 | Direct Employers Association

Saturday, January 22, 2022: Responding to the Supreme Court ruling, CMS issues final guidelines implementing the vaccination mandate for healthcare facilities in 25 states where the mandate was previously imposed

Following the decision of the Supreme Court decision in Biden, et al. v. Missouri, et al. validate the Centers for Medicare & Medicaid Services (“CMS”) Provisional Final Rule requiring COVID-19 vaccination of healthcare workers, CMS released two guidelines implementing the vaccination requirement in the 25 states where the mandate was previously imposed by court order. the first The guidelines released Jan. 14 set out requirements for compliance with the interim final rule in the 24 states subject to previous court rulings in Missouri et al. vs. Biden, et al. and Louisiana, et al. vs. Becerra, et al. the second The guidelines released Jan. 20 outline compliance requirements in Texas. Similar to the initial Guidance published on December 28, 2021, we previously had discussedboth guidelines require compliance with the interim final rule in states subject to the guidelines.

Thus, Medicare and Medicaid certified healthcare providers and providers in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Dakota North, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming must meet the 30/60/90 day timelines for vaccination of personnel working after the January 14 issue date as follows:

  • Within 30 days of January 14, 2022, for a facility to be fully compliant, it must demonstrate that:
    • Developed and implemented policies and procedures to ensure 100% vaccination of covered employees against COVID-19; and
    • 100% of staff must receive at least one dose of a COVID-19 vaccine, or have a pending request or have obtained a qualifying waiver.

If the establishment has less than 100% compliance, the CMS will issue a notice of non-compliance. A facility with a vaccination rate above 80% but expecting to achieve 100% vaccination within 60 days will not be subject to enforcement action. Otherwise, the facility could be subject to various enforcement actions, such as remediation plans, civil monetary penalties, denial of Medicare or Medicaid payments, and/or termination of contracts.

  • Within 60 days of January 14, 2022, for a facility to be fully compliant, it must demonstrate that:
    • It has developed and implemented policies and procedures to ensure 100% vaccination against COVID-19; and
    • 100% of staff must receive at least one dose of a COVID-19 vaccine or must have obtained a qualifying waiver.

If the establishment has less than 100% compliance, the CMS will issue a notice of non-compliance. A facility with a vaccination rate above 90% and planning to achieve 100% vaccination within 30 days will not be subject to enforcement action. Otherwise, the facility could be subject to enforcement action, such as remediation plans, civil monetary penalties, denial of Medicare or Medicaid payments, or termination of contracts.

  • Within 90 days and thereafter beginning January 14, 2022, facilities that fail to meet the 100% standard may be subject to legal action.

Medicare and Medicaid certified providers and providers in Texas must comply with the same requirements, but only within 30/60/90 days of January 20, 2022.

With the release of these two guidelines, CMS has now provided guidance and instructions to all facilities in all 50 states to comply with the interim final rule requiring vaccination of personnel.

Andrew B. Reiter