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OSHA and CMS Supreme Court Rulings: What Now?

January 14, 2022

OSHA and CMS Supreme Court Rulings: What Now?
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OSHA Emergency Temporary Standard 

On January 13, 2022, the Supreme Court effectively blocked OSHA’s Emergency Temporary Standard (ETS) from taking effect. The ruling temporarily relieves employers of the duty to follow the mandated vaccine-or-test requirements from OSHA, but it does not preclude OSHA from introducing new standards through its rulemaking process in the coming months.

CMS Vaccine Mandate

On November 5, 2021, CMS sought to amend – through an interim final rule with comment period (IFC) – the conditions of participation (COPs) in Medicare and Medicaid programs by requiring that regulated healthcare facilities ensure that certain staff members are vaccinated against COVID-19. After successful challenges by states in district court and the subsequent failure of two courts of appeals to grant a stay of the injunctions, CMS sought relief from the Supreme Court.

On January 13, 2022, the Supreme Court ruled that the CMS IFC (also referred to as the CMS Vaccine Mandate) was valid. Pending further dispositions of any governments’ appeals or any petitions for writ of certiorari, the CMS Vaccine Mandate stands.

Following the Supreme Court’s decision, CMS issued a press release, clarifying its intent to apply the rule to every state.

Are all healthcare organizations affected?

The CMS Vaccine Mandate does not directly apply to some healthcare entities such as physician offices not regulated by CMS, organ procurement organizations, and portable X-ray suppliers.

The Centers for Medicare & Medicaid Services (CMS) establishes health and safety standards, known as the Conditions of Participation, Conditions for Coverage, or Requirements for Participation for 21 types of providers and suppliers. Most of these providers and suppliers are regulated the November 5, 2021 IFC and include only the following Medicare- and Medicaid-certified providers and suppliers: 

  • Ambulatory Surgical Centers (ASCs)
  • Hospices 
  • Psychiatric residential treatment facilities (PRTFs) 
  • Programs of All-Inclusive Care for the Elderly (PACE) 
  • 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) 
  • Long-Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes 
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) 
  • Home Health Agencies (HHAs) 
  • Comprehensive Outpatient Rehabilitation Facilities (CORFs)
  • Critical Access Hospitals (CAHs) 
  • Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services 
  • Community Mental Health Centers (CMHCs) 
  • Home Infusion Therapy (HIT) suppliers 
  • Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) 
  • End-Stage Renal Disease (ESRD) Facilities

Note that physicians with admitting privileges at facilities subject to the mandate must be vaccinated in order for the facility to be in compliance. Healthcare practices not subject to the CMS rule may choose – in compliance with their state laws – to implement their own vaccine mandate. Check with your employer if you have any other questions about vaccination requirements.

Enforcement Timelines

The goal of the CMS Vaccine Mandate is to reach a staff vaccination rate of 100% (with limited exemptions).

Prior to the Supreme Court’s ruling, CMS released enforcement guidance to state surveyors on December 28, 2021 that applied to those states then-subjected to the CMS Vaccine Mandate. Until CMS provides additional guidance, the same resource can be used by other states.

The first enforcement deadline is January 27, 2022 (30 days after issuance of the December 28, 2021 guidance).

Facilities covered under the CMS Vaccine Mandate should read the guidance in full to best understand how compliance with rule will be enforced. The December 28, 2021 guidance can be found here.

Enforcement remedies can include civil monetary penalties, denial of payments, and (as a final measure) termination of participation from the Medicare and Medicaid programs. The sole enforcement remedy for non-compliance for hospitals and certain other acute and continuing care providers is termination; however, CMS’s primary goal is to bring healthcare facilities into compliance. Termination would generally occur only after providing a facility with an opportunity to make corrections and come into compliance.

More Information

Healthcare workers and others interested in learning more about or obtaining a COVID-19 vaccination can visit https://www.vaccines.gov/ for additional information.

For a list of frequently asked questions regarding the mandate, visit these FAQs compiled by CMS.

For more information, please contact the LAMMICO Risk Management and Patient Safety Department at 504.841.5211.


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