CMS Revises Enforcement Guidance—Again

By Elizabeth S. Wylie and Jessica Van Ranken

After the publication of our Legal Alert on the Supreme Court decision lifting the stay on the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “Rule”) published by the Centers for Medicare & Medicaid Services (“CMS”), CMS released additional updates to its interpretive guidance that moved the goalposts (again) for certain states.  The new guidance, published on January 14, 2022, can be found here.  The states affected by the new guidance are the states previously subject to stays in the Fifth and Eighth Circuits: 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. The new guidance does not apply to states where the CMS Rule was not previously stayed or to Texas, where the CMS Rule is still subject to a preliminary injunction in a separate legal action that was not before the Supreme Court.

Under the new guidance, the first dose compliance date for the 24 covered states is February 14, 2022, with full compliance required by March 15, 2022. For states not impacted by the Supreme Court decision, the previously announced compliance dates of January 28, 2022 and February 27, 2022 remain in effect.  For more information about the previous interpretive guidance published by CMS, see our January 13, 2022 Legal Alert, linked here.

CMS will investigate and enforce compliance through standard and complaint surveys.  Depending on the nature of the facility and severity of the deficiency, covered employers who do not comply with the vaccine mandate deadlines may face civil monetary penalties, denial of payment, or termination from participating in Medicare or Medicaid programs.