In the continuing drama of the vaccine mandates by the Centers for Medicare and Medicaid Services (CMS), CMS has taken a step back, giving some relief to regulated entities – at least for now – that until the rulings unfold in the various court challenges to the mandate, CMS will not be sending in surveyors to assess compliance with the mandate nor penalizing entities who are not in compliance by the required dates (December 6, 2021 for the first dose and January 4, 2022 for the second dose). CMS issued this decision in a memorandum dated December 2, 2021.

What does this mean in practical terms?

• Hospitals and other Medicare-regulated facilities in any state without a state law prohibiting or requiring mandates may decide whether or not to voluntarily require their staff to be vaccinated. The nationwide “halt” on the mandate described in our previous client update did not stop health care facilities from mandating the vaccine – it just meant that hospitals were not required to do so. The new development (CMS taking a step back) simply gives these health care entities some peace of mind that they will not be penalized if they choose not to mandate the vaccine.
• Hospitals and other Medicare-regulated facilities in any state with a state law requiring or prohibiting mandates will still need to comply with that state law requirement – the CMS decision to stand back means that there is no federal preemption of state law for health care workers.
• CMS has appealed both of the preliminary injunctions against the mandate. Accordingly, all regulated entities will need to keep their eye on the 5^th Circuit Court of Appeals and 8^th Circuit Court of Appeals – and potentially the U.S. Supreme Court – to be ready to jump back into action if the injunctions are overturned. Given that the Phase 1 compliance date was December 6, 2021, it is expected that if the injunctions are overturned, new compliance dates will be issued by CMS.
• It is well within the health care entity’s legal rights – unless in a state that prohibits vaccine mandates – to continue to mandate the vaccine for its staff.