Client Alerts & Insights
Updated Deadlines and Interpretive Guidance from CMS for Compliance with COVID-19 Vaccination Standards
January 21, 2022
Authored By:
Updated January 21, 2022
In response to the U.S. Supreme Court’s decision on January 13, 2022, upholding the Health Care Staff Vaccination Standards for certain Medicare- and Medicaid- certified providers and suppliers necessary to participate in the Medicare and Medicaid programs,[1] Medicare- and Medicaid- certified health care facilities nationwide must take action to comply with the CMS guidance requiring health care facility staff COVID-19 Vaccination standards.
On January 20, 2022, CMS released the Guidance for the Interim Final Rule – Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-11-ALL), applicable to Texas (the “Texas Guidance”). CMS had not previously included Texas in any prior guidance on the COVID-19 Vaccine standards, due to pending litigation concerning enforcement of the CMS COVID-19 Vaccine standards in the state of Texas. On January 19, 2022, this litigation was dismissed,[2] and CMS released the Texas Guidance shortly thereafter.
CMS had previously released the Guidance for the Interim Final Rule – Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-07-ALL) on December 28, 2021 (the “Group 1 Guidance”) and the Guidance for the Interim Final Rule – Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-09-ALL) (the “Group 2 Guidance”) on January 14, 2022.
The Group 1 Guidance sets forth timelines and guidance for compliance with the CMS COVID-19 Vaccine standards for state surveyors in states that were not party to the litigation (“Group 1 States”). The Group 2 Guidance sets forth revised timelines and guidance for compliance with the CMS COVID-19 Vaccine standards to help state surveyors determine the severity of a noncompliance deficiency in states that were party to the litigation before the U.S. Supreme Court (the “Group 2 States”). The Texas Guidance sets forth revised timelines and guidance for compliance with the CMS COVID-19 Vaccine standards to help state surveyors determine the severity of a noncompliance deficiency in Texas.
Group 2 States include: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. Group 1 States include all other states and jurisdictions except for Texas.
Under the Group 1 Guidance, the Group 2 Guidance, and the Texas Guidance, Medicare- and Medicaid- certified health care facilities must demonstrate that they developed and implemented policies and procedures to ensure that all facility staff, regardless of clinical responsibility or patient or resident contact, are vaccinated for COVID-19 (“COVID-19 Vaccination Policies and Procedures”).
Further, all such facility staff must obtain the necessary doses to complete the COVID-19 vaccine series within certain time frames (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series).
Below is a summary of the time frames set forth in the Group 1 Guidance, the Group 2 Guidance, and the Texas Guidance:
|
Policies and Procedures and First Dose Compliance Deadlines |
||||
|
Group 1 |
Group 2 |
Texas |
Compliance Standard |
Enforcement Action |
|
January 27, 2022 |
February 14, 2022 |
February 16, 2022 |
Health care facilities must demonstrate that:
|
A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action.
|
|
Second Dose Compliance Deadlines |
||||
|
Group 1 |
Group 2 |
Texas |
Compliance Standard |
Enforcement Action |
|
February 28, 2022 |
March 15, 2022 |
March 17, 2022 |
Health care facilities must demonstrate 100% of staff have completed the COVID-19 vaccine series, been granted a qualifying exemption, or a temporary delay as recommended by the CDC. |
A facility that is above 90% and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to additional enforcement action. |
Facilities may be subject to enforcement action for failure to maintain 100% compliance with the CMS COVID-19 Vaccine standards after March 28, 2022, for Group 1 States, after April 14, 2022, for Group 2 States, or after April 18, 2022, for Texas. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.). CMS indicated that non-compliance does not necessarily lead to termination, and facilities will have opportunities to get back into compliance.
Provider-specific guidance for Medicare- and Medicaid- certified facilities in Group 1 States, Group 2 States, and Texas can be found at the links below:
- Long Term Care Facilities: Group 1 States, Group 2 States, and Texas
- Ambulatory Surgery Centers: Group 1 States, Group 2 States, and Texas
- Hospices: Group 1 States, Group 2 States, and Texas
- Hospitals: Group 1 States, Group 2 States, and Texas
- Psychiatric Residential Treatment Centers: Group 1 States or Group 2 States, and Texas
- Intermediate Care Facilities for Individuals with Intellectual Disabilities: Group 1 States or Group 2 States, and Texas
- Home Health Agencies: Group 1 States, Group 2 States, and Texas
- Comprehensive Outpatient Rehabilitation Facilities: Group 1 States, Group 2 States, and Texas
- Critical Access Hospitals: Group 1 States, Group 2 States, and Texas
- Outpatient Physical Therapy Facilities: Group 1 States, Group 2 States, and Texas
- Community Mental Health Centers: Group 1 States, Group 2 States, and Texas
- Home Infusion Therapy Providers: Group 1 States, Group 2 States, and Texas
- Rural Health Clinics & Federal Qualified Health Clinics: Group 1 States, Group 2 States, and Texas
- End Stage Renal Disease Facilities: Group 1 States, Group 2 States, and Texas
For more information on the Interim Final Rule, please see the Benesch client bulletin regarding the Interim Final Rule (November 5, 2021) here.
For more information regarding the Supreme Court’s decision regarding the health care facility COVID-19 Vaccine standards, please see the Benesch client bulletin regarding the decision (January 14, 2022) here.
W. Clifford Mull at cmull@beneschlaw.com or 216.363.4198.
Catherine R. Gawron at cgawron@beneschlaw.com or 312.624.6419.
[1] Biden v. Missouri,595 U.S. ___, 1 (2022) at 4; 86 Fed. Reg. at 61561.
[2] State of Texas et al v. Becerra et al, Docket No. 2:21-cv-00229 (N.D. Tex. Nov 15, 2021).
Latest News
Owner-Operators and Federal Leasing Regulation Compliance: Legal Q&A
Key Takeaways: The longstanding practice of many motor carriers operating through independent contractor owner-operators remains today despite the many legal …
Group Defamation Claims and the Evolving Limits of the Group Libel Doctrine
Courts are increasingly willing to look beyond the traditional small-group requirement when assessing whether an allegedly defamatory statement is “of and concerning” a particular plaintiff. Recent decisions suggest that audience perception and real-world impact may matter as much as group size.
HRSA’s Revised 340B Rebate Pilot Drama
The Health Resources and Services Administration’s revised 340B Rebate Model Pilot would replace up-front discounts with post-purchase rebates for 21 drugs beginning January 1, 2027, requiring covered entities to pay full wholesale acquisition cost and submit claims data to recover the 340B discount.
Restrictions on Foreign Interests in the Transportation and Logistics Sector: A Look Ahead
The transportation and logistics industry is not immune from rising concerns about foreign investment. Since the start of this Administration, the U.S. Department of Transportation has steadily turned focus to perceived threats against both public safety and purely domestic operators by non-U.S. interests in the sector.