HJAR Mar/Apr 2022

VACCINE MANDATES 20 MAR / APR 2022 I  HEALTHCARE JOURNAL OF ARKANSAS   the other hand, physician’s offices, private outpatient behavioral health clinics, and assisted living facilities were not covered by the CMS rule because CMS does not reg- ulate those provider types. Even within covered provider types, there were questions regarding which individuals were required to be covered by the vacci- nation mandate. What about non-patient- care staff?What about volunteers or board members? What about delivery people or outside service technicians who nonethe- less come into direct contact with patients and staff? Many of these decisions were left to individual employers to decide, with the only clear exemptions to the vaccination mandate being staff who work away from the provider site and have absolutely no direct contact with patients or covered staff. While covered healthcare providers were embroiled in developing the required vaccination mandate policies, a number of states and other entities filed suit seek- ing court injunctions to overturn the CMS mandate. As a result of these lawsuits, CMS announced on December 2, 2021, just three days before employees were supposed to have their first vaccine dose under the CMS rule, that it would not enforce the vac- cination mandate pending the outcome of the lawsuits. On December 28, 2021, CMS announced that, because injunctions had been lifted by some (but not all) courts, the vaccination mandate would be enforced in only about half of the states with new com- pliance deadlines of January 27, 2022, and February 28, 2022. 5 The mandate was not to be enforced in the other states in which the mandate was still enjoined. Then, on Jan- uary 13, 2022, the United States Supreme Court issued a decision that upheld the CMS vaccination mandate rule. On Jan. 14, 2022, CMS announced that the revised deadlines would apply to all states (except Texas, for reasons not relevant to this discussion). 6 CMS provided some leeway for providers that were becoming compliant. However, CMS also directed compliance surveys to begin in mid-February to ensure the man- date’s full enforcement. or Medicaid programs, to ensure their staff were fully vaccinated for COVID. 4 The time frame in the CMS rule required employ- ees of these healthcare providers to have received at least their first shot of a two- course vaccination by December 5, 2021, in order to provide any care, treatment, or other services for the healthcare provider or to its patients. Employees were required to be fully vaccinated by January 4, 2022. The CMS mandate was stricter than the OSHA mandate described below in that it required affected employers to mandate vaccination for all employees (with a small number of exceptions, including clinical contraindications and requests for accom- modations due to disability or sincerely held religious beliefs, observances, or practices). Employers subject to the CMS rule were required to obtain and maintain documen- tation of exemption requests and to put contingency plans in place for employees who were not (and might never be) fully vaccinated. The CMS rule was primarily confusing in determining exactly which healthcare employees were covered. Were all health- care providers covered? Were healthcare employers covered only if they participated inMedicaid or Medicare?Which employees of covered healthcare employers were sub- ject to the mandate? A careful reading of the CMS rule made it clear that many healthcare settings were not covered by the rule at all. The rule listed fifteen specific categories of provider types that CMS regulates and to which the vac- cination mandate applied. CMS took the approach that it could require a vaccina- tion mandate only as a condition of par- ticipation for providers over which it has regulatory authority. In each case, the vac- cination mandate was included in the regu- lations that were already in place regarding infection control, required services, or per- sonnel standards. That meant that hospi- tals, nursing homes, and community men- tal health centers were subject to the CMS Rule because each is certified by CMS for participation inMedicare and Medicaid. On PRESIDENTIAL ACTION On August 18, 2021, President Biden announced a COVID-19 Action Plan with a primary objective that required large groups of Americans to receive vaccinations. 3 In the first half of 2021, the federal government had taken numerous actions to make vac- cinations more available and to encourage employers, schools, healthcare providers, and state and local governments to adopt vaccination mandates. However, according to the President’s plan, despite those efforts, more than 80 millionAmericans who were eligible to receive COVID vaccinations remained not fully vaccinated. The President’s plan had several com- ponents, but three focused on vaccination mandates: 1. Requiring employers with 100 or more employees to implement mandatory vaccination policies or, as an alterna- tive, weekly testing and face covering requirements. 2. Requiring federal employees and employees of federal contractors to receive vaccinations. 3. Requiring COVID-19 vaccinations for over 17 million healthcare workers at Medicare and Medicaid participating healthcare settings. CONFUSION Six months following the announce- ment of President Biden’s plan to increase the number of vaccinated individuals, the three vaccination mandate components of that plan have not proceeded as originally intended and, combined with state legisla- tion regarding vaccination mandates, have left the vaccination mandate picture murky at best. CMS Rule for Healthcare Workers On Friday, Nov. 5, 2021, the Centers for Medicare andMedicaid Services (CMS) pub- lished an interim final rule that required certain types of healthcare facilities and providers, as part of their certification requirements to participate in the Medicare