On January 14, 2022, the Centers for Medicare and Medicaid Services (CMS) issued guidance on enforcement of its Interim Final Rule mandating COVID-19 vaccination for healthcare providers certified by Medicare or Medicaid. The guidance follows the Supreme Court’s decision blocking injunctions issued against the Rule (click here for our previous Alert on the Supreme Court’s ruling).

The delayed enforcement applies to the following 24 states, all of whom were involved in the cases that went before the Supreme Court: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. In those states, covered facilities must begin coming into compliance by February 13, 2022 (30 days following issuance of the guidance). Specifically, by that date, covered facilities must have policies and procedures in place for ensuring COVID-19 vaccination of all staff and that 100 percent of staff have either received the first dose or have (a) made an exemption request, (b) been granted a qualifying exemption, or (c) been identified as having a CDC-recommended temporary delay. By March 15, 2022 (60 days following the issuance of the guidance), covered facilities must ensure that 100 percent of staff have completed the vaccine series (either one dose of a single-dose vaccine, or all doses of a multi-dose vaccine) unless they have been granted a qualifying exemption or have a CDC-recommended temporary delay.

Covered facilities in all other states, except Texas, are required to follow CMS’s previous guidance issued on December 28, 2021. The deadlines for compliance for those states are January 27 (30-day deadline) and February 26 (60-day deadline).

With regard to facilities in the state of Texas, as of the time of this Alert, there is still a preliminary injunction in effect preventing CMS from enforcing its vaccine mandate. The federal government, however, has filed an appeal of the preliminary injunction as well as a stay of the preliminary injunction. In view of the Supreme Court’s recent ruling, it is likely that a stay will be granted either by the U.S. District Court or by the U.S. Court of Appeals for the 5th Circuit (which is one of the two Circuits directly addressed by the Supreme Court’s recent ruling).