Centers for Medicare and Medicaid Services Enforces COVID-19 Vaccine Mandate

Last week, the Centers for Medicare & Medicaid Services (CMS) issued a final rule requiring vaccination against COVID-19 for employees in most health care settings. This rule includes hospital and health systems participating in Medicare and Medicaid.¹

Hospitals and health systems must vaccinate staff members within 60 days.

The rule includes all employees, including those who do not have direct patient contact. The ruling does include exemptions for staff who provide support services exclusively outside of the facility setting.²

The regulation also requires health care providers to establish a process or policy to ensure staff are fully vaccinated over 2 phases.

During phase 1—within 30 days of the rule’s publication, or by December 6, 2021— employees at all health care facilities must have received their first dose of a 2-shot series of either Moderna or Pfizer or a single dose of the 1-shot Johnson & Johnson vaccine. Staff must complete this step before they can provide any care, treatment, or other services for the facility and/or its patients.

During phase 2—implemented within 60 days of the rule’s publication, or by January 4, 2022—all staff must complete their primary vaccination series.

The new rule applies to specific categories of providers that participate in the Medicare and Medicaid program, such as ambulatory surgery centers, hospices, residential treatment facilities, and long term care facilities, among others.

Facilities that fall under this new CMS rule must develop a plan to vaccinate all eligible staff, while also creating a process to provide exemptions and accommodations for staff who are eligible for medical or religious exemptions from the vaccine requirements—although these exemptions must be “in accordance with federal law,” according to the National Law Review.² Processes must also be implemented to track and document these vaccinations and exemptions.

CMS noted that this new rule “takes priority above other federal vaccination requirements.” For facilities that are not covered due to nonparticipation in Medicare and Medicaid programs, the Biden Administration’s recent executive order on COVID-19 safety protocoals for federal contractors or the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) applies.^3,4

Editor’s note: On November 12, 2021, the United States Court of Appeals for the Fifth Circuit granted a motion to stay the OSHA ETS, ordering the department to “take no steps to implement or enforce…until further court order.”⁴ 

References

• CMS issues rule requiring mandatory COVID-19 vaccinations for health care workers. News Release. American Hospital Association. November 4, 2021. Accessed November 12, 2021. https://www.aha.org/special-bulletin/2021-11-04-cms-issues-interim-final-rule-requiring-mandatory-covid-19-vaccinations
• Marblestone C, Hepworth AJ, Schoonover K. CMS requires COVID-19 vaccination for health care facility staff. The National Law Review. November 8, 2021. Accessed November 12, 2021. https://www.natlawreview.com/article/cms-requires-covid-19-vaccination-health-care-facility-staff
• Executive order on ensuring adequate COVID safety protocols for federal contractors. News release. The White House. September 9, 2021. Accessed November 15, 2021. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/
• COVID-19 vaccination and testing ETS. OSHA. Accessed November 15, 2021.