Despite continuing disputes as to the legality and enforcement of the CMS’ vaccine mandate for certified providers and suppliers, CMS has indicated it will proceed with enforcement of the mandate in those states where it is not enjoined from doing so with clarifying guidance issued on December 28, 2021. See below for immediate action steps for those currently subject to the mandate.
As previously reported, on November 4, 2021 the Centers for Medicare and Medicaid (CMS) issued an Interim Final Rule (the CMS Rule) requiring most Medicare and Medicaid certified providers and suppliers to vaccinate staff members within 60 days.
Covered employers in the health care space began taking steps to ensure compliance by January 4, 2022. However, in the ensuing weeks, a flurry of court activity ensued, putting the status of the CMS Rule in question. In November, a Louisiana federal court issued an injunction prohibiting enforcement of the CMS Rule nationwide, causing CMS to temporarily pause its enforcement efforts. Then, in mid-December, the Fifth Circuit Court of Appeals issued an opinion partially upholding and partially reversing the injunction.
The effect of this has been that the CMS Rule is currently enjoined in 25 states, but may be enforced in the remaining 25 states and U.S. territories.
Meanwhile, the original January 4 compliance date has been fast-approaching, with employers in the non-enjoined states and territories having little guidance from CMS as to what would happen...
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