Two federal court rulings currently in place have created a nationwide preliminary injunction prohibiting the Centers for Medicare & Medicaid Services (CMS) and the US Department of Health and Human Services (HHS) from enforcing the recent Interim Final Rule that requires Medicare-and Medicaid providers subject to Medicare conditions of participation to have all staff vaccinated with some exceptions.
Late on Thursday, December 2, the CMS posted memo QSO-22-04-ALL notifying state survey agency directors that it has suspended activities related to the implementation and enforcement of the vaccine mandate rule (Interim Final Rule, see previous NAHC Report article here) due to the preliminary injunctions that are in effect. As a result, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule. Since enforcement of the rule is pending the outcome of the litigation, as has occurred with the OSHA ETS, providers can suspend efforts to comply with the CMS/HHS rule. However, home health agencies and hospices may voluntarily choose to comply with the Interim Final Rule.
Ultimately, NAHC anticipates that the legal issues will either be subject to a higher court’s ruling, or the Administration will take actions to modify its rules. It remains possible that the District Court rulings will be reversed and that the original compliance deadlines will be held in place. While that outcome is not highly likely, a good faith compliance effort will be the best protection a provider can have against any enforcement action.
The fate of the various on-going U.S. District Court lawsuits is uncertain. We are advising NAHC members to continue to undertake, in good faith, all necessary measures to be compliant with Phase 1 and Phase 2 requirements of the rule except for any steps that would have been taken with staff that are not vaccinated or subject to an exception. We further advise providers to document any barriers to compliance.
We remain very concerned that CMS has issued no guidance on how providers should address any workforce shortages triggered by the rule in event that such leads to insufficient staff to care for existing patients or any new patient admissions.
Full statement from NAHC President William A. Dombi:
“Currently, there are two federal court rulings that in combination result in a nationwide preliminary injunction prohibiting the Centers for Medicare and Medicaid Services (CMS) and the US Department of Health and Human Services (HHS) from enforcing the recent Interim Final Rule that requires Medicare-and Medicaid providers subject to Medicare conditions of participation to have all staff vaccinated with some exceptions. We are advising NAHC members to continue to undertake, in good faith, all necessary measures to be compliant with Phase 1 and Phase 2 requirements of the rule except for any steps that would have been taken with staff that are not vaccinated or subject to an exception. We further advise providers to document any barriers to compliance.
“With the fate of the various on-going U.S. District Court lawsuits uncertain, we believe it is incumbent upon providers to operate in good faith throughout to achieve compliance. Ultimately, we anticipate that the legal issues will either be subject to a higher court’s ruling or the Administration will take actions to modify its rules. It remains possible that the District Court rulings will be reversed and that the original compliance deadlines will be held in place. While that outcome is not highly likely, a good faith compliance effort will be the best protection a provider can have against any enforcement action.
“Should the Administration take steps to directly suspend implementation and enforcement of the rule pending the outcome of the litigation, as has occurred with the OSHA ETS, providers can then suspend efforts to comply with the CMS/HHS rule. We encourage the Administration to take such a step to provide needed clarity to all health providers subject to the rule.
“We remain very concerned that CMS has issued no guidance on how providers should address any workforce shortages triggered by the rule in event that such leads to insufficient staff to care for existing patients or any new patient admissions. “
