On January 13, 2022, the U.S. Supreme Court ruled to allow the Centers for Medicare & Medicaid Services (CMS) to enforce its vaccine mandate nationwide (with the exception of Texas). At the same time, the Court stayed the U.S. Occupational Safety and Health Administration (OSHA) from enforcing the large-employer vaccine mandate under an Emergency Temporary Standard.
The following provider/supplier types are subject to the CMS mandate:
- Ambulatory surgical centers (ASC)
- Psychiatric residential treatment facilities (PRTF)
- Programs of All-Inclusive Care for the Elderly (PACE) organizations
- Long term care facilities (including skilled nursing facilities and nursing facilities)
- Intermediate care facilities for individuals with intellectual disabilities
- Home health agencies (HHA)
- Comprehensive outpatient rehabilitation facilities (CORF)
- Critical access hospitals (CAH)
- Clinics, rehabilitation agencies and public health agencies as providers of outpatient physical therapy and speech-language pathology services
- Community mental health centers (CMHC)
- Home infusion therapy suppliers
- Rural health clinics/federally qualified health centers (RHC/FQHC)
- End-stage renal disease (ESRD) facilities
Physician offices are not subject to the mandate. However, physicians and other licensed independent providers admitting and/or treating patients in-person within a facility subject to CMS’ health and safety regulations and included in the mandate must be vaccinated so that the facility is compliant.
CMS has stated that the regulation implementing the vaccine mandate preempts any state law to the contrary (e.g., state laws that prohibit vaccine mandates). However, states that prohibit healthcare facilities from requiring the COVID-19 vaccine as a condition of employment may still take steps to enforce those state laws. Providers are encouraged to consult with their legal counsel to help manage these conflicts.
For more information, read the CMS-issued memo to State Survey Agency Directors. The memo’s list of attachments and CMS-issued FAQs are also available. Please note that these documents were last updated on December 28, 2021, and do not reflect the latest Supreme Court ruling.
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