On December 28, 2021, the Centers for Medicare and Medicaid Services (CMS) reinstated its COVID-19 vaccine mandates for covered health care facilities as set forth in the Interim Final Rule published on November 5, 2021.

The following states are required to comply with the COVID-19 vaccine mandate:

California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin.

The following states are not required to comply with the COVID-19 vaccine mandate:

Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

States that must comply the COVID-19 vaccine mandate must meet the following deadlines:

January 27, 2022 – Covered facilities must have:

(1) Policies and procedures are developed and implemented for ensuring all staff are vaccinated for COVID-19, and
(2) Have 100% of staff receive at least one dose of COVID-19 vaccine or have a pending request for or have been granted a qualifying exemption or have been identified as having a temporary delay as recommended by the CDC.
* A facility that is above 80% and has a plan to achieve a 100% compliance rate within the following 60 days will not be subject to further enforcement action.

February 28, 2022 – Covered facilities must have:

(1) Developed and implemented policies and procedures for ensuring a 100% vaccination rate, and
(2) Have 100% of the staff have received the necessary doses to complete the vaccine series (i.e., one dose of a single dose vaccine or all doses of a multiple dose vaccine) or have been granted a qualifying exemption or have been identified as having a temporary delay as recommended by the CDC.
* Noncompliant facilities can avoid an enforcement action if they can demonstrate that it is above 90% or has a plan to achieve a 100% compliance rate within 30 days.

March 28, 2022 – Covered facilities must be compliant otherwise the facility may be subject to further enforcement action.

A person is compliant with the COVID-19 vaccine mandate if:

• They have received a single dose vaccine, such as Johnson & Johnson
• They have received all required doses of a multi-does vaccine, such as Pfizer-BioNTech or Moderna
• A booster is not required to meet the COVID-19 vaccine mandate.

The COVID-19 vaccine mandate applies to Medicare and Medicaid-certified facilities that are regulated under the Medicare health and safety standards known as Conditions of Participation (CoPs), Conditions of Coverage (CfCs), or Requirements. The staff working at such facilities are required to be vaccinated, regardless of clinical responsibility or patient contact. This includes facility employees, licensed practitioners, students, trainees, volunteers, and those providing patient care under contract or other arrangement. The COVID-19 vaccine mandate does not apply to those who work 100% remotely and do not have direct contact with patients or staff. The vaccine mandate does not apply to physician offices or dentist offices, which are not regulated by CMS.

For more information, please contact Blalock Walters at 941.748.0100.

External FAQ CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, CMS, https://www.cms.gov/files/document/cms-omnibus-covid-19-health-care-staff-vaccination-requirements-2021.pdf.

CMS Will Enforce Health Care Vaccine Mandate Unless Enjoined By Court, JDSUPRA, https://www.jdsupra.com/legalnews/cms-will-enforce-health-care-vaccine-9517182/.

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