Yesterday, the U.S. Supreme Court upheld the Centers for Medicare and Medicaid Services (CMS) vaccine mandate by a vote of 5 in favor and 4 dissenting. The Supreme Court held that CMS did have statutory authority to issue its Interim Final Rule requiring that in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the CMS vaccine mandate must ensure that their employees and staff be vaccinated against COVID-19. As evidenced during oral argument, the Supreme Court distinguished the CMS vaccine mandate from the OSHA ETS based on spending clause powers. The majority of the Supreme Court was persuaded by CMS’ prior history of establishing long lists of detailed conditions on providers for participation in Medicare and Medicaid, and that vaccination is a common feature for health care workers who are ordinarily required to be vaccinated for influenza, hepatitis B, and measles, mumps, and rubella. The dissenting opinion held that CMS did not have statutory authority to issue the rule and wanted stronger statutory proof. The dissent noted these cases are not about the efficacy or importance of COVID-19 vaccines, but about CMS statutory authority to issue the Interim Final Rule. The majority decision concluded that while the challenges posed by a global pandemic do not allow CMS to exercise power that Congress has not conferred upon it, such unprecedented circumstances provided no grounds for limiting the exercise of authorities CMS has long been recognized to have.

For Minnesota facilities and providers subject to the CMS vaccine mandate, Minnesota was not one of the 25 states where the stay had been pending.  The new compliance dates for the CMS vaccine mandate are:

• January 27, 2022: Have policy in place and all eligible staff must have at least 1 dose of COVID-19 vaccine.  

• February 28, 2022: All eligible staff must be fully vaccinated or qualify for an exemption. 

On December 28, 2021, CMS provided guidance to state surveyors regarding a phased approach for enforcement action thresholds (see QSO-22-07 and specific facility guidance here).

As a reminder, only the following Medicare and Medicaid certified providers and suppliers are subject to the CMS vaccine mandate:

1. Ambulatory Surgical Centers (ASCs) (§ 416.51)  
2. Hospices (§ 418.60)  
3. Psychiatric residential treatment facilities (PRTFs) (§ 441.151)  
4. Programs of All-Inclusive Care for the Elderly (PACE) (§ 460.74)  
5. Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities) (§ 482.42)  
6. Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes (§ 483.80)  
7. Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) (§ 483.430)  
8. Home Health Agencies (HHAs) (§ 484.70)  
9. Comprehensive Outpatient Rehabilitation Facilities (CORFs) (§§ 485.58 and 485.70)  
10. Critical Access Hospitals (CAHs) (§ 485.640)  
11. Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (§ 485.725)  
12. Community Mental Health Centers (CMHCs) (§ 485.904)  
13. Home Infusion Therapy (HIT) suppliers (§ 486.525)  
14. Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) (§ 491.8)  
15. End-Stage Renal Disease (ESRD) Facilities (§ 494.30)  

Next to each provider type above in parentheses are the vaccination requirements in the Conditions of Participation, Conditions for Coverage, or Requirements for Participation located in Title 42 of the Code of Federal Regulations (CFR).