On November 5, 2021, the Centers for Medicare and Medicaid Services (CMS) released an interim final rule with comment period to require COVID-19 vaccination for staff of certain healthcare providers. The rule applies only to certain providers, but is expansive in scope where it is applicable. Under the rule, affected staff must receive their first vaccine dose by December 6, 2021 and be fully vaccinated by January 4, 2022.
The CMS vaccine requirement does not apply to all Medicare-enrolled providers and suppliers. CMS issued the mandate under its authority to set Conditions of Participation for certain providers. Therefore, only these specific, Medicare-certified provider types are directly subject to the requirement:
- Ambulatory Surgical Centers (ASCs)
- Psychiatric Residential Treatment Facilities (PRTFs)
- Programs of All-Inclusive Care for the Elderly (PACE)
- Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities)
- Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes
- Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs–IID)
- Home Health Agencies (HHAs)
- Comprehensive Outpatient Rehabilitation Facilities (CORFs)
- Critical Access Hospitals (CAHs)
- Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services
- Community Mental Health Centers (CMHCs)
- Home Infusion Therapy (HIT) suppliers
- Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs)
- End-Stage Renal Disease (ESRD) Facilities
The vaccine requirement generally does not apply directly to other healthcare providers, such as physician offices. However, if other healthcare providers or suppliers provide services at or to one of the affected provider types, they may be indirectly subject to the vaccine requirement as well.
Where the vaccine requirement applies to a Medicare-certified provider, it applies broadly to all employees, contractors, and volunteers who interact with other staff or patients. In addition to clinical and patient-facing personnel, the rule also applies to administrative staff, management, students, trainees, housekeeping, and food service staff. The requirement applies to staff who work in the facility, as well as those who may work offsite or in patient homes. Even remote workers who occasionally have in-person meetings with other staff are likely subject to the rule. Lastly, because the rule applies to contractors of affected providers, it may indirectly apply to other healthcare providers who are contracted to provide services to or at an affected provider. Contractors who provider infrequent, non-healthcare related services (such as delivery or repair personnel) are to be evaluated on a case-by-case basis.
The few exceptions to the vaccine requirement are generally limited to staff who work 100% remotely and those who receive exemptions due to sincerely held religious beliefs. Lastly, it is important to note that providers who are not subject to the CMS vaccine requirement may be subject to other vaccine requirements, such as those issued by the Occupational Safety and Health Administration (OSHA), employers, or state regulatory entities.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters. If you or your healthcare entity has any questions pertaining to the CMS vaccine requirement or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or firstname.lastname@example.org.