Supreme Court Reinstates CMS Vaccine Mandate

January 14, 2022

(New Guidance Released  - See update here)

By Amie K. Wilcox

The United States Supreme Court granted the federal government’s request to reinstate the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (CMS Mandate) after two U.S. District Courts had enjoined the enforcement of the rule in 25 states, including Arkansas. The Court, in a 5-4 decision, determined that the petitioning states were not likely to succeed on the merits of their challenges and that the CMS Rule may go into effect while the cases proceed. 

In its opinion reinstating the CMS Rule, the Court stressed “perhaps the most basic function” of the Secretary of Health and Human Services “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” The Court also pointed to the long history of established Conditions of Participation with which facilities must comply to be eligible to receive Medicare and Medicaid funds, such as the requirement for certain providers to maintain and enforce an infection prevention and control program designed to prevent the development and transmission of communicable diseases and infections.

When Must Covered Facilities Comply?

Facilities covered by the CMS Mandate will need to ensure they are in compliance with the Rule before initial enforcement by state surveyors begins on January 27, 2022. CMS has not issued guidance as to whether the initial enforcement deadline of January 27, 2022 may be delayed in states where the CMS Mandate was previously enjoined. We will continue to monitor this developing question. You can read more about what facilities are covered and what steps are required for compliance here.

What About Conflicting State Laws?

Arkansas Act 1115 has now gone into effect, which requires employers mandating COVID-19 vaccinations to provide additional exemptions that are not provided for by the CMS Rule. CMS is clear in its Final Rule that the vaccination requirement preempts any conflicting state law.

Amie K. Wilcox's practice is focused in the area of healthcare where she works primarily on various corporate and compliance matters. She drafts and reviews policies to ensure compliance with federal healthcare regulations such as HIPAA, Stark I and Stark II, Anti-Kickback and Medicare/Medicaid reimbursement.

Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.