On January 13, 2022, the United State Supreme Court upheld the Department of Health and Humans Services (“HHS”) Centers for Medicare and Medicaid Services (“CMS”) COVID-19 vaccine mandate for staff working at Medicare-participating health care facilities. HHS/CMS had issued an interim final rule on November 5, 2021, that incorporated a vaccine mandate into the health and safety regulations (e.g., conditions and requirements of participation) that apply to 15 types of facilities and agencies that participate in Medicare. The interim rule required these facilities and agencies to adopt policies and procedures mandating COVID-19 vaccination for all staff, except in cases of religious or medical exemption or delay, by stated deadlines.
Two groups of states filed successful legal actions to enjoin the CMS vaccination rule in Missouri and Louisiana, which ultimately resulted in a situation where the CMS vaccine rule was enjoined in half of the states, and not in the other half. The HHS Secretary sought expedited Supreme Court rule of the two injunction cases, which were consolidated, and oral arguments were heard by the Court on January 7, 2022.
In its written decision, the Court stayed the two injunctions pending ultimate resolution of the two court cases and held that HHS/CMS was within its legal authority to issue the COVID-19 vaccine mandate for Medicare-enrolled facilities and agencies. Specifically, the Court noted that Congress had authorized the Secretary to impose conditions on the receipt of Medicare and Medicaid funds as needed to protect the health and safety of individuals who receive services reimbursed by Medicare and Medicaid. Further, the Secretary had an established and essentially unchallenged history of doing so through the Medicare regulations pertaining to practitioner qualifications, practitioner and facility practices, and infection control.
The Court determined that the Secretary of HHS had, based on available scientific evidence, concluded that a vaccine mandate was necessary to protect patient health and safety in the face of the COVID-19 pandemic, and issued the vaccine mandate as part of the health and safety regulations within his authority to do so. However, on the same day the Court upheld the CMS vaccine mandate, it also struck down the large employer vaccine-or-test emergency temporary standard issued by the Occupational Health and Safety Administration (“OSHA”).
While the CMS vaccine mandate case was pending before the Court, CMS issued guidance for implementing the interim final rule in those states without an injunction in place, including adjusted enforcement deadlines. See, CMS QSO-07-ALL. Michigan is one of the states without an injunction, and Michigan Medicare facilities and agencies are subject to the interim rule and enforcement deadlines specified in the CMS guidance. CMS has not yet indicated whether it will adjust these enforcement deadlines for some or all states now that the injunctions have been stayed and the interim rule upheld by the Court.
If you have questions about implementing the CMS COVID-19 vaccine mandate in your facility or agency, please contact Kathleen A. Reed at kreed@dykema.com or (231) 348-8134.