What is the status of the legal challenge to the CMS rule?

The United States Supreme Court lifted the lower court injunctions that were blocking enforcement of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate in 24 states (including Wyoming). This means that the CMS Interim Final Rule requiring COVID-19 vaccine immunizations for healthcare workers will go into effect and be enforced. The Supreme Court’s 5-4 decision was entered on Jan. 13, 2022. While the Supreme Court’s ruling is not a final resolution of the legal challenge, it allows enforcement of the rule while the case is pending.

When will the requirements take effect?

CMS Administrator Chiquita Brooks-LaSure issued a press release on Jan. 13th regarding the Supreme Court decision. She stated that the states covered by the Supreme Court’s decision “will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.”

CMS has not announced (as of time of publishing) an enforcement date or compliance timeline for the 24 states, including Wyoming, that were under the prior injunction.

What does the rule require?

The CMS rule applies to all Medicare and Medicaid-certified facilities. The rule requires all providers’ and suppliers’ staff to receive the COVID-19 vaccine unless exempted as required by law. The rule does not include a testing alternative like the now blocked OSHA rule. Instead, the mandate is that every employee gets vaccinated. Each facility must adopt its own policy regarding exemptions and the accommodations it will require of exempted employees, e.g., masking and testing.

What will enforcement of the rule look like?

CMS issued a memorandum to State Survey Agency Directors regarding the implementation and enforcement of the vaccine mandate on Dec. 28, 2021. This memorandum did not apply to Wyoming and the other states that were under the preliminary injunction at that time; however, it provides insight to how the rule will be enforced going forward. The memorandum states that “[f]acility staff vaccination rates under 100% constitute non-compliance under the rule.” It goes on to state that “CMS will follow current enforcement procedures based on the level of deficiency cited during a survey.”

What is the status of the legal challenge to the OSHA rule?

The United States Supreme Court upheld the injunction blocking enforcement of the OSHA Vaccine Mandate for Employers of 100+ employees. The Court also issued this ruling on Jan. 13, 2022, thereby preventing the Biden administration from enforcing the vaccine-or-test requirements of the OSHA rule. Again, while this was not a final decision, there will be no changes to the status of the injunction until the case is ultimately decided.

If you have questions regarding enforcement of COVID-19 vaccine mandates, please contact Tyson Woodford or Kara Ellsbury at Hirst Applegate, LLP.