In issuing an order on Jan. 13, 2022, in two cases involving the Centers for Medicare and Medicaid Services (CMS) vaccine rule, Biden v. Missouri and Becerra v. Louisiana, the U.S. Supreme Court removed a temporary halt imposed by lower courts that affected health care facilities in 24 states, including Ohio, Indiana, and Kentucky.

As reported in our November 2021 law bulletin, CMS promulgated a health and safety regulation for Medicare and Medicaid-certified facilities on Nov. 5, 2021 (the CMS vaccine mandate).

On Dec. 28, 2021, CMS announced through a Survey and Certification memorandum to State Agencies that it would begin enforcing the CMS vaccine mandate in the states and territories where the mandate had not been enjoined. With the Jan. 13 U.S. Supreme Court order, the vaccine mandate is now only enjoined in one state — Texas. In other words, CMS was already proceeding with implementing the rule in 25 states (and in the District of Columbia and the territories), and CMS will now proceed with implementing and enforcing the CMS vaccine mandate in all states but Texas, until modified by additional court action.

While additional communication from CMS regarding deadlines for the 24 states impacted by the Jan. 13 Supreme Court order is expected, the deadline for implementation of Phase 1 for the 25 states impacted by the December 28 CMS Survey and Certification memorandum is Jan. 27, 2022. Phase 1 requires facilities to have vaccine mandate policies and procedures in place and all staff (except those with exemptions) to have received their first dose of the vaccine. Phase 2 requires all staff (except those with exemptions) to be fully vaccinated, but does not require boosters.

The CMS vaccine mandate allows for religious and medical exemptions and accommodations based on existing federal law. Note that for religious exemptions, surveyors have been instructed in each of its guidance documents for Medicare-certified facilities not to assess the specific details of a religious exemption request or to assess the facility’s rationale for the acceptance or denial of the request. Rather, surveyors are instructed to review whether facilities have an effective process to allow for exemptions based on a staff request. While the CMS vaccine mandate allows for exemptions, the regulation requires facilities to take additional precautions for staff who are not fully vaccinated to mitigate the spread of COVID-19.

CMS uses 30, 60, and 90-day benchmarks for compliance. Within 90 days of the issuance of the Dec. 28, 2021 memorandum, facilities failing to maintain compliance may be subject to enforcement action.

In summary, with the U.S. Supreme Court’s lift of the stay for 24 states where the CMS vaccine mandate had been enjoined, the CMS vaccine mandate is now applicable in all states and territories in the United States other than in Texas. We encourage all certified facilities to review the Survey and Certification memorandum and applicable CMS facility-specific guidance documents and begin steps to comply with the CMS vaccine mandate as soon as possible so as to meet the Phase 1 deadline. The Phase 1 deadline is Jan. 27, 2022, for 25 states and all U.S. territories where the CMS vaccine mandate was already in effect (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).