Medicare Compliance & Reimbursement

If you’re confused about whether to follow Medicare’s COVID-19 vaccination mandate or take a breather over the holidays as the requirement meanders through the courts, you’re not alone. A new ruling suggests that vaccination rollouts must go on, but only in certain states. Read on for the scoop.

Recap: After the Centers for Medicare & Medicaid Services (CMS) issued a vaccine mandate regulation on Nov. 5, states and state coalitions mounted legal challenges to them in federal courts across the country. On Nov. 29, the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction covering 10 states, blocking the CMS interim final rule with comment period (IFC) that would require employee COVID vaccination for 21 types of Medicare health care providers. Then on Nov. 30, the U.S. District Court for the Western District of Louisiana granted a nationwide preliminary injunction on the matter — but legal experts warned that providers might want to continue with the vaccination requirement plans anyway (see Medicare Compliance & Reimbursement, Vol. 47, No. 23).

Next: On Dec. 2, CMS weighed in with a memorandum to state surveyors to step down on enforcing the mandate while the legal battle plays out.

“While CMS remains confident in its authority to protect the health and safety of patients in facilities certified by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation,” the agency says in a Dec. 2 memo to state surveyors. “Accordingly, while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule,” CMS instructs in QSO-22-04-ALL.

Now: “The Fifth Circuit Court of Appeals issued its opinion partially upholding and partially reversing the district court’s injunction,” note attorneys Taylor Appling and Kara Schoonover with law firm Foley & Lardner in online legal analysis. The government is likely to win its bid to limit the nationwide injunction, Appling and Schoonover say. “In other words, although the CMS Rule is still halted in the 14 states that brought the lawsuit in Louisiana, and in the 10 states that are part of the Missouri lawsuit, for everywhere else, the injunction is lifted,” they explains. Twenty-six states were affected by this latest legal update.

“One of those 26 states — Texas — nonetheless remained a party in its own challenge to the CMS rule, in which Texas is the only state plaintiff,” explain attorneys Yvette Gatling, Sanjay Nair, and David Dixon with law firm Littler Mendelson P.C. in online legal analysis. “Within hours after the Fifth Circuit decision on December 15, 2021, narrowing the Louisiana injunction only to the party states in that case, the district court on the Texas case convened an emergency hearing on Texas’ pending motion for preliminary injunction, and granted it later the very same day.”

At press time, 25 states were still impacted by the Fifth Circuit Court of Appeals ruling and include the following states: CA, CO, CT, DE, FL, HI, IL, ME, MD, MA, MI, MN, NV, NJ, NM, NY, NC, OR, PA, RI, TN, VT, VA, WA, WI.

The real question is what to do about enforcement with this latest legal update. “We are all awaiting guidance from CMS on when enforcement in the non-enjoined states will start back up — if at all,” Appling and Schoonover observe. Remember, the Phase 1 deadline to get all staff (except for those with valid exemptions) the first dose of the vaccine was Dec. 6.

A compliance mess is brewing. The mandate is turning into a game of red light, green light, the Foley attorneys rue. And “several covered entities have locations across state lines and may be forced to implement, and to comply with a hodgepodge of various federal, state, and local rules,” they worry.

Important: Providers probably don’t have to worry about implementation until they officially hear from CMS. “A reasonable interpretation of CMS’ December 2, 2021 instructions is that there should be no survey activity (even in states where the injunction is lifted) until after receipt of further guidance from CMS,” Appling and Schoonover judge.

However, providers should be ready to turn on a dime. “Covered entities — in all states — should continue to be ready to put in place the policies and procedures necessary to comply with the CMS vaccination mandate,” Appling and Schoonover advise.

Stay tuned: Medicare Compliance & Reimbursement will continue to monitor and report on any changes to the suspension, implementation, and enforcement of CMS’ COVID vaccination mandate.

Review the CMS memo at www.cms.gov/files/document/qso-22-04-all.pdf/.