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CMS Guidance on Thursday’s Supreme Court Decision

Jan 17 2022

Following Thursday’s Supreme Court decision in Biden, et al. v. Missouri, et al., No. 21A240; and Becerra, et al. v. Louisiana, et al., No. 21A240 (Jan. 13, 2022) the Centers for Medicaid and Medicare’s (“CMS”) requirement that healthcare providers certified to accept Medicaid or Medicare mandate COVID-19 vaccination for their employees, CMS issued updated guidance to the 24 states impacted by the decision.

As a reminder, CMS issued a memo in December 2021 providing updated guidance to the states not subject to the then-pending Supreme Court litigation, which laid out new deadlines for compliance with the mandate. CMS has also clarified that its original mandate applied only to Medicare- and Medicaid- certified facilities and not to assisted living facilities, or providers of home- and community- based services. In its newest memo, CMS provides updated deadlines for vaccination for the states impacted by Thursday’s decision. Both the December 2021 and the January 2022 memoranda, are very clear that Facility staff vaccination rates under 100% constitute noncompliance under the rule and will receive a notice of noncompliance. However, facilities with more than 80% of workers vaccinated within thirty days of each memo and a plan to achieve a 100% staff vaccination rate by the sixtieth day will not be subject to additional enforcement action. Of course, both the December 2021 and the January 2022 memoranda also necessitate compliance with federal non-discrimination and civil rights laws and protections, including providing reasonable accommodations to individuals who are legally entitled to them because they have a disability or sincerely held religious beliefs, practices, or observations that conflict with the vaccination requirement. Providers in noncompliance outside of the 30- and 60- day grace period thresholds and disability and religions exemptions above, will be subject to additional enforcement actions that will depend on the severity of the deficiency and the type of facility, but may include plans of correction, civil monetary penalties, denial of payment, and, as a last resort, termination from the program.

The details of the various CMS’ memoranda and its impact on different states are below:

State

Applicable CMS Memo

First Deadline for Vaccination

Second Deadline for Vaccination

California, Colorado, Connecticut, Delaware, 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, Wisconsin, Wyoming and Washington, DC and territories

QSO-22-07-ALL

January 27, 2022

February 28, 2022

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, Utah, West Virginia and Wyoming

QSO-22-09-ALL (January 14, 20221)

February 13, 2022

March 15, 2022

Texas

QSO-22-07-ALL

N/A Enforcement suspended pending the outcome of Texas vs. Becerra

N/A Enforcement suspended pending the outcome of Texas vs. Becerra

Given the continued complexity of the matter, Stotler Hayes advises all providers to stay informed as to the ever-changing myriad of regulations and court interpretations of the same, and to immediately take efforts to finalize internal vaccination policies and procedures, including protocols for exemptions and timeframes for compliance. If you have any questions or need assistance, please contact Kelly Hayes or Ashley Shudan.

A founding partner of Stotler Hayes Group, Kelly Hayes received her Bachelor of Arts from Georgetown University and her Juris Doctor from The George Washington University Law School (where she volunteered with the US Department of Justice and was recognized in Who’s Who Among American Law Students).  She is admitted to practice in North Carolina, South Carolina, Virginia, and before the United States Court of Appeals for the Fourth Circuit.  She currently resides in South Carolina.  Kelly holds an inactive bar license in the District of Columbia and Pennsylvania.

Written by Stotler Hayes · Categorized: Compliance, COVID-19

Stotler Hayes Group, LLC is a national, boutique law firm focused on optimizing recovery for health care providers through Medicaid, Medicare, private collections, training and education. Our attorneys are licensed in, and represent clients before, federal and state courts and agencies in a majority of states around the country.

In the handful of states where Stotler Hayes Group, LLC does not employ a full-time attorney, referrals are made to local counsel, many of whom we have developed close working relationships with over the years. In those cases, our firm works with local counsel throughout the pendency of the case.

Stotler Hayes Group, LLC,

Principal Office: Pawley’s Island, SC, Phone: 843-235-9871; Fax: 888-497-7390; email: info@stotlerhayes.com

This website is for informational purposes only. Please remember that every case is different. Any result we achieve for one client in one matter does not necessarily indicate similar results can be obtained for other clients.

The attorney responsible for the content of this website is Andrea Kirksey, Esq., Executive Director and General Counsel for Stotler Hayes Group, LLC, 297 Willbrook Boulevard,  Pawley’s Island, South Carolina.

She may be contacted at (843) 235-9871, ext. 1002 or at akirksey@stotlerhayes.com.

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