Medicare Compliance & Reimbursement

Now: On Jan. 13, the Supreme Court upheld the IFC in a 5-4 decision, backing the CMS’ vaccination mandate for employees working at facilities participating in Medicare and Medicaid.

“We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19,” notes the Supreme Court ruling.

This decision wasn’t surprising to legal experts, especially since Medicare and Medicaid are funded by the federal government.

“It [the Court] reasoned that a core mission of HHS is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their health and safety,” say attorneys Elizabeth S. Wylie, Paul J. Giancola, and Jessica Van Ranken with law firm Snell & Wilmer LLP in online analysis. And Medicare and Medicaid Conditions of Participation (CoPs) have “long included requirements to prevent the transmission of communicable diseases and infections,” Wylie, Giancola, and Van Ranken note.

“According to the Supreme Court, requiring COVID-19 vaccinations fits ‘neatly within’ Congress’s conferral of authority for healthcare providers receiving the federal funds,” explain attorneys with Foley & Lardner LLP in online legal analysis. “The Court emphasized that healthcare workers are routinely required to receive vaccinations (for example, they are required to be vaccinated against hepatitis B, influenza, and measles, mumps, and rubella),” the Foley & Lardner lawyers observe.

Keep on Top of Mandate Changes

If your facility operates in one of the states where the injunction was lifted in December, then you should proceed as planned, CMS indicates in a release.

“Today’s decision does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted,” CMS reminds. The IFC due dates for getting your employees vaccinated still stand at Jan. 27 (Phase 1) and Feb. 28 (Phase 2) as previously established in the Dec. 28, 2021, guidance to state survey agency directors.

However, if your organization is in one of these states — AL, AK, AR, AZ, GA, ID, IN, IA, KS, KY, LA, MS, MO, MT, NE, NH, ND, OH, OK, SC, SD, UT, WV, WY — and therefore now covered by the Court decision, you must have staff vaccinated with the first dose of the vaccine by Feb. 14 (Phase 1) and the second dose by March 15 (Phase 2), says CMS in a new Jan. 14 memo to state survey agencies.

“The ‘wait and see’ window has closed,” judge attorneys with law firm Hall Render in online analysis. “The Court has clearly signaled that CMS’s IFR is valid,” they stress.

“At this point, the CMS rule is full speed ahead,” says attorney Robert Markette Jr. with Hall Render in Indianapolis. “We are seeing staggered enforcement deadlines due to the various injunctions,” Markette observes. “CMS is giving providers in states that had injunctions additional time. That is reasonable, as many of those providers took no action to begin implementing,” Markette says.

Caution: Those staggered timelines may cause confusion, especially for organizations that operate in states with different deadlines, Markette suspects.

Lone star state: Texas “still has an injunction in place,” Markette acknowledges. However, “I suspect that will be going away soon,” he says.

“The Biden administration is appealing that injunction in the Fifth Circuit, the same circuit through which Louisiana and 13 other states made it to the Supreme Court,” note attorneys Colleen Faddick, Jennifer Evans, Michael Flood, and Colleen Guinn with law firm Polsinelli in online analysis.

Bottom line: Even though the COVID mandate implementation turnaround time is short, CMS intends to continue to help providers struggling to meet the compliance deadlines, which is a positive.

“Today’s decision will enable us to fully implement this rule, and we look forward to working with health care providers and their workers to protect patients,” said CMS Administrator Chiquita Brooks-LaSure in a release. “We will continue our extensive outreach and assistance efforts encouraging individuals working in health care to get vaccinated.”

Resources: View the SCOTUS decision at www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf; find the state surveyors links, including specific links with instructions for the Medicare and Medicaid provider and supplier types impacted by the mandate at www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/ guidance-interim-final-rule-medicare-and-medicaid-programs-omnibus-covid-19-health-care-staff-0; and read the CMS memo from Jan. 14 to state surveyors at www.cms.gov/files/document/qso-22-09-all-injunction-lifted.pdf.