CMS and MedPAC Guidelines and Trends

The COVID-19 vaccine mandate for healthcare workers can take effect nationwide, Supreme Court says

January 21, 2022 1:16 am

Note: This article has been updated with news about the Texas case and compliance deadlines for states in which injunctions had been in place prior to the Supreme Court decision.

The court lifted injunctions that had halted implementation of the mandate in half the country, leaving hospitals and other covered providers with likely only a few weeks to begin complying.

The federal COVID-19 vaccine mandate is set to be enforced across the country after the Supreme Court on Jan. 13 lifted injunctions that had blocked the mandate in 24 states.

Siding with the Biden administration in a 5-4 ruling, the court said the mandate “falls within the authorities that Congress has conferred upon” the secretary of Health and Human Services (HHS).

The majority added, “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’”

The one state where an injunction remains in place for now is Texas, which went to court on its own and not as a party to two other lawsuits that involved the 24 states. The Texas court injunction was not at issue during the Supreme Court’s Jan. 7 hearing.

Jan. 20 update: On Jan. 19, a federal court in Texas dimissed the case at the request of the state, which said it would not pursue further enforcement of an injunction in light of the Supreme Court decision. Thus the mandate will apply in all 50 states.

The court went the other way with a 6-3 decision on a vaccine-or-test mandate that was implemented for all businesses with at least 100 employees. The Occupational Health and Safety Administration does not have authority to issue such a directive, the court said.

Both decisions pertain only to injunctions, meaning the cases can continue to work their way through the federal court system. If nothing else, Thursday’s opinions signal the ultimate fate of each set of regulations should the cases reach the Supreme Court.

Legal experts who spoke during a private stakeholder call noted the potential significance of wording of a passage in which the majority wrote that they conclude HHS did not exceed its statutory authority with the mandate. The word “conclude” suggests there is little likelihood that the five justices could be swayed during future proceedings.

Next steps in enforcement

The ruling means that for hospitals and other providers subject to Medicare and Medicaid conditions of participation, all employees must be vaccinated unless they qualify for an exemption or work off-site and don’t have regular interaction with patients or co-workers. CMS did not immediately specify a compliance timeline for providers in the 24 states. The likeliest scenario is 30 days (on or around Feb. 13) to attain Phase 1 compliance and 60 days (on or around March 14) for Phase 2.

Update: CMS since has announced that the deadlines for the 24 states are Feb. 14 for Phase 1 compliance and March 15 for Phase 2 compliance. For covered providers in Texas, the deadlines are Feb. 21 and March 21.

Hospitals in the 25 states (and Washington, D.C.) where the injunctions did not apply have until Jan. 27 to comply with the Phase 1 of the requirements, meaning staff must receive the first dose of a two-dose vaccine or complete a single-dose series (see CMS’s most recently updated FAQ on the mandate). Hospitals also must  have processes in place by that date for tracking vaccinations and permissible medical or religious exemptions.

By Feb. 28, the Phase 2 deadline, staff must be fully vaccinated as defined by the CDC, meaning both shots in a two-dose series. A booster shot currently is not required for staff to be considered vaccinated. In instances of substantial and prolonged noncompliance, healthcare organizations could be disqualified from the Medicare and Medicaid programs.

“Today’s decision will enable us to fully implement this rule, and we look forward to working with healthcare providers and their workers to protect patients,” CMS Administrator Chiquita Brooks-LaSure said in a written statement. “We will continue our extensive outreach and assistance efforts encouraging individuals working in healthcare to get vaccinated.”

Around a dozen states and a number of large health systems had imposed some version of a mandate before the federal regulations were issued. The Supreme Court’s decision establishes certainty at a national level.

Rick Pollack, president and CEO of the American Hospital Association (AHA), issued a statement in response to the decision, saying AHA would “work with the hospital field to find ways to comply that balances that requirement with the need to retain a sufficient workforce to meet the needs of their patients.”

CMS offers short-term flexibility

Pollack added that AHA expects CMS to adhere to its recent pledge to exercise enforcement discretion in the initial period after the mandate takes effect.

In December, CMS issued a memo to quality safety and oversight (QSO) agencies, stating that hospitals won’t be subject to penalties at the Jan. 27 deadline if at least 80% of staff have received the required vaccination and the hospital can demonstrate a plan to ensure full compliance within 60 days.

A similar allowance will apply at the Feb. 28 deadline if 90% of staff are vaccinated and the hospital can show a plan to get everyone else vaccinated within 30 days.

AHA recently sent a letter to CMS seeking various other accommodations, including implementation of a process by which hospitals can submit compliance-related questions and receive rapid feedback from CMS.


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