News Regarding the CMS Vaccination Mandate

As we recently shared, the appellate courts dissolved the nationwide injunction preventing the CMS vaccine mandate from going into effect. CMS has now issued new guidance on deadlines for compliance that will impact Florida healthcare employers.

According to the new guidance, no later than January 27, 2022, healthcare employers must be able to demonstrate:

• That they have developed and implemented policies and procedures ensuring that all facility staff are vaccinated; and
• That 100% of their staff have received at least one dose of the COVID-19 vaccine or that they have pending requests for, or have been granted, an exemption; but
• If fewer than 100% of their staff have not done the above, then the employers will not be subject to enforcement actions:
  • If at least 80% of their staff have had one dose of the COVID-19 vaccine or have a pending request for, or have been granted, an exemption; and
  • Employers have a plan to achieve 100% staff vaccination within 60 days.

Then, no later than February 28, 2022, healthcare employers must be able to demonstrate:

• That they have developed and implemented policies and procedures ensuring that all facility staff are vaccinated; and
• That 100% of their staff have received the necessary doses of the COVID-19 vaccine or have pending requests for, or have been granted, an exemption; but
• If fewer than 100% of their staff have not done the above, then the employers will not be subject to enforcement actions:
  • If at least 90% of their staff have had one dose of the COVID-19 vaccine or have a pending request for, or have been granted, an exemption; and
  • Employers have a plan to achieve 100% staff vaccination within 30 days.

Then, no later than March 28, 2022, healthcare employers must be able to demonstrate:

• That they have developed and implemented policies and procedures ensuring that all facility staff are vaccinated; and
• That 100% of their staff have received at least one dose of the COVID-19 vaccine or have pending requests for, or have been granted, an exemption.

The CMS guidance advises that the surveyors will begin reviewing for compliance starting on January 27, 2022. Under the survey authority for nursing homes, home health agencies, and hospice, enforcement might include assessing civil monetary penalties, denying payments, and—as a final measure—terminating participation. On the other hand, the sole enforcement remedy for noncompliance for hospitals and certain other acute and continuing-care providers is termination. Nevertheless, CMS’s stated primary goal is to bring healthcare facilities into compliance rather than seek termination, which would only occur if healthcare providers have had an opportunity to make corrections that bring them into compliance.

Furthermore, Florida’s Agency for Health Care Administration (AHCA) has provided an update to the recent CMS guidance. In AHCA’s guidance, it advises Florida medical providers that it will not survey for compliance with the CMS vaccine mandate rule. Instead, AHCA will comply with Florida law, and reminds healthcare providers that under this law, private employers are prohibited from imposing “a COVID-19 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; religious reasons; COVID-19 immunity; periodic testing; and the use of employer-provided personal protective equipment.”

This update from AHCA no doubt adds to the confusion for healthcare provider employers in Florida. It is hoped that the U.S. Supreme Court will issue decisions quickly after the January 7, 2022 hearing on the legal challenges to the CMS and OSHA vaccination rules.