On December 28, 2021, the Centers for Medicare and Medicaid Services (“CMS”) announced that it will begin enforcement of the COVID-19 vaccine mandate, as set forth in the Interim Final Rule published on November 5, 2021, in 25 states and the District of Columbia.

CMS’s S&C Memo QSO 22-07-ALL (“Memo”) indicated that it will take a phased approach to enforcement in states where the Courts have not stayed the CMS Interim Rule. Those states are:  California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin. 

Enforcement over nursing homes, home health agencies and hospices will include civil monetary penalties, denial of payments and – as a final measure – termination of participation under the Medicare and Medicaid programs.  

The sole enforcement mechanism over hospitals and certain other acute and continuing care providers is termination of participation under the Medicare and Medicaid programs.  

Nevertheless, CMS’s stated goal is to bring covered facilities into compliance; thus, termination will only occur after providing notice of non-compliance and an opportunity to comply and non-compliant facilities may avoid enforcement action if they meet certain thresholds in the next 85-days.  

CMS expects that 100% of the staff of covered providers and suppliers become fully vaccinated or are under an authorized exception.  Anything less than 100% will be considered non-compliant.  However, non-compliant facilities can avoid further enforcement action if they meet certain thresholds.

Specifically, if, by January 27, 2022, covered facilities will be considered compliant if:

1.    Policies and procedures are developed and implemented for ensuring all staff are vaccinated for COVID-19; and 
2.    (a) 100% of staff have received at least one dose of COVID-19 vaccine, or (b) have a pending request for or have been granted a qualifying exemption, or (c) have been identified as having a temporary delay as recommended the CDC.

Covered facilities that do not meet the requirements of No. 2 will receive a notice of non-compliance under the rule.  A facility that is above 80% and has a plan to achieve a 100% compliance rate within the following 60 days will not be subject to further enforcement action.  

In addition, covered facilities must demonstrate the following by February 26, 2022 to be compliant under the rule: (1) the facility has developed and implemented policies and procedures for ensuring a 100% vaccination rate and (2) either (a) 100% of the staff have received the necessary doses to complete the vaccine series (i.e., one dose of a single dose vaccine or all doses of a multiple dose vaccine) or (b) have been granted a qualifying exemption or (c) identified as having a temporary delay as recommended by the CDC.  At the 60-day mark, non-compliant facilities will receive a notice of non-compliance but can avoid further enforcement action if the facility can demonstrate that it is above 90% and has a plan to achieve a 100% compliance rate within 30 days.  

By March 28, 2022, covered facilities must be 100% compliant otherwise the facility may be subject to further enforcement action.   

As CDF blogged on December 27, 2021, whether the CMS vaccine mandate will remain enjoined in other states or is enforceable is pending before the United States Supreme Court and scheduled for oral argument on January 7, 2022.