CMS Issues Guidance Reinstating Enforcement Timeline for COVID Vaccine Rule in States Not Covered by Preliminary Injunctions

On December 29, the Centers for Medicare & Medicaid Services (CMS) announced it would modify the implementation and enforcement timeline for the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (CMS IFR) in the states where there is not currently a preliminary injunction. CMS is currently enjoined from implementation or enforcement of the CMS IFR in 25 states: 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, Texas, Utah, West Virginia, and Wyoming.  

This guidance supersedes previous statements from CMS that it would not take action to enforce the rule while it is subject to any court-ordered injunction.

The deadline for Phase 1 implementation is now January 27, 2022, and the deadline for Phase 2 implementation is February 28, 2022. The guidance provides additional details for Phase 1 and Phase 2 deadlines.

Phase 1 Enforcement:

• On or before January 27, 2022, a facility must demonstrate that it has policies and procedures in place for ensuring all covered facility staff are vaccinated for COVID-19 and that 100% of staff have received at least one dose of the COVID-19 vaccine (unless they have received or requested an exemption).
• The facility is non-compliant if less than 100% of all staff have received at least one dose of a COVID-19 vaccine (unless that staff member has a pending request for or has been granted a qualifying exemption).
• A facility that has achieved at least an 80% staff vaccination rate and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action.

Phase 2 Enforcement:

• On or before February 28, 2022, a facility must demonstrate that it has policies and procedures in place for ensuring all covered facility staff are vaccinated for COVID-19 and that 100% of staff have received the necessary doses to complete the COVID-19 vaccine series (unless they have received or requested an exemption).
• The facility is non-compliant if less than 100% of all staff have received at least one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series (unless that staff member has a pending request for or has been granted a qualifying exemption).
• A facility that is above a 90% staff vaccination rate and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to additional enforcement action.
• By March 28, 2022, facilities that have not met the 100% standard may be subject to enforcement actions.

As for the ongoing litigation, the U.S. Supreme Court is set to hear oral arguments on January 7 for challenges to both the preliminary injunction of the CMS IFR and enforcement of the OSHA Vaccination and Testing Emergency Temporary Standard.