CMS COVID-19 Vaccine Mandates
There has been a lot of confusion over the COVID-19 Vaccine Mandates. Since November, 2021 we have seen court challenges and decisions from the Supreme Court. In the months to come, we could see other twist and turns in this continuing story.
The recent history includes presidential orders, OSHA mandates, states filing lawsuits against the federal government. In the state of Texas, a case was filed to prevent federal vaccination mandates. That case was ultimately withdrawn. In the midst of all of this, the November 4, 2021 CMS COVID-19 Health Care Staff Vaccination Interim Final Rule was approved and put into effect.
Understanding which types of providers this new CMS rule applies to — and which it does not — is the starting point for compliance.
For this rule to apply, a facility must be regulated under the Medicare Conditions of Participation. (CoPs)
So logically, “Private Practice” Mental Health and Physical Therapy Offices are not required to comply with the November 4, 2021 CMS COVID-19 Health Care Staff Vaccination Interim Final Rule.
Here is the list of mandated facilities that must comply with the CMS current mandates:
Clinics, Rehabilitation Agencies, Public Health Agencies
Community Mental Health Centers
Comprehensive Outpatient Rehab Facilities
Critical Access Hospitals
Home Health Agencies
Hospice
Hospitals
Intermediate Care Facilities for Individuals with Intellectual Disabilities
Long Term Care Facilities
PACE Elderly All-Inclusive Care
Psychiatric Residential Treatment Facilities
Rural Health Clinics
Federally Qualified Health Centers
Who Must be Vaccinated:
The answer is short — all eligible staff, current and new, working onsite at a mandated facility. In addition, subcontractors that regularly enter the facility also fall under the mandate.
Dates for Compliance:
Dates are based on the state. Each jurisdiction has 2 deadline dates:
Deadline #1 (Create and implement Policy and Procedures for all staff to have received 1 dose of Moderna or Pfizer):
February 14, 2022 for LA, AZ, AL, GA, ID, IN, MI, OK, SC, UT, WV, KY, OH, AK, IO, KA, MS, NE, NH, ND, SD, WY
February 22, 2022 for TX
January 27, 2022 for all other states
Deadline #2: (Create and implement Policy and Procedures for all staff to have received either 2nd dose of Moderna or Pfizer or 1st dose of J&J):
March 14, 2022 for LA, AZ, AL, GA, ID, IN, MI, OK, SC, UT, WV, KY, OH, AK, IO, KA, MS, NE, NH, ND, SD, WY
March 21, 2022 for TX
February 28, 2022 for all other states
What Exemptions are Allowed and What is Required?
There are two exemptions allowed: medical and religious.
Requirements for Medical Exemptions:
Develop a process for employee requests.
Ensure all documentation is signed and dated by licensed practitioner.
Request must contain all information specifying why the COVID-19 vaccines are clinically contradicted for the staff member.
Request must include a statement by the authenticating practitioner recommending the staff member by exempt.
Facilities must review and make a decision if medical exemptions are documented and evaluated in compliance with applicable federal law as part of the facility policy and procedures.
Requirements for Religious Exemption:
Develop a process for permitting staff to make a request.
Facilities must ensure all request for religious exemptions are documented and evaluated in compliance with applicable federal law as part of the facility policy and procedures.
How are Accommodation for Unvaccinated Staff Required to Be Handled?
Unvaccinated staff members can be given certain work assignments as an accommodation to help minimize the risk of transmission to at-risk individuals. One aspect of this option is to consider if an “undue burden” is being created for the employer in granting the accommodation. If an “undue burden” is identified, the employer can deny the accommodation.
Accommodations may include
Reassignment to duties that limit exposure
Non-patient care
Remote duties
Testing
Physical distancing
N95 masking or equivalent
In the end, consider this statement from CMS regarding non-compliance: “If a facility does not return to compliance, it is at risk for additional enforcement actions, including losing Medicare or Medicaid payment.”