Health Care Alert: CMS Announcement Requiring Medicare Providers to Vaccinate Employees Excludes Physician Practices

This morning, the Centers for Medicare and Medicaid (CMS) announced the formal requirement that Medicare and Medicaid providers must require all eligible staff to be vaccinated against COVID-19. The list of providers who are held to this standard are all facility-based providers that are subject to CMS’s Conditions of Participation (COPs). This list excludes physician practices, but does apply to the following entity types:

• Ambulatory Surgical Centers (ASC)
• Hospices
• Programs of All-Inclusive Care for the Elderly (PACE)
• Hospitals
• Long Term Care facilities (LTC)
• Psychiatric Residential Treatment Facilities
• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF)
• Home Health Agencies (HHA)
• Comprehensive Outpatient Rehabilitation Facilities (CORF)
• Critical Access Hospitals (CAH)
• Rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services
• Community Mental Health Centers
• Home Infusion Therapy suppliers
• Rural Health Clinics/Federally Qualified Health Centers (RHC/FQHC)
• End-Stage Renal Disease Facilities (ESRD)

All eligible employees are required to be fully vaccinated by January 4, 2022. Each facility’s COVID-19 vaccination policies and procedures must apply to the following facility staff, regardless of clinical responsibility or patient contact and including all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients as follows:

• Facility employees
• Licensed practitioners
• Students, trainees, and volunteers
• Individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement

Staff subject to this requirement are not just limited to those staff who perform their duties within a formal clinical setting, but rather also include staff that primarily provide services remotely via telework who occasionally encounter fellow staff, such as in an administrative office or at an off-site staff meeting, who will themselves enter a health care facility or site of care for their job responsibilities. Note that individuals who provide services 100 percent remotely, such as fully remote telehealth or payroll services, are not subject to the vaccination requirements.

This rule does, however, permit constitutional exceptions for medical conditions and religious beliefs, observances, or practices. CMS will enforce this rule through its survey process and thus penalties for non-compliance will come in the form of citations as they do for other COP violations. This date is aligned with the government’s mandates also simultaneously issued by the Occupational Safety and Health Administration (OSHA) and amendments for federal contractor requirements. It should be noted that although a physician practice may be exempt from this CMS requirement, a physician practice may be subject to the OSHA policy which affects employers with more than 100 employees.

Health care entities who are subject to any of these mandates should begin establishing their policy if they have not already done so and be sure to include a policy for requesting exemptions. See Labor and Employment attorney Steve Bond’s post with a sample of such a policy. Brouse has a team of health care and employment law attorneys who can assist you with these new rules and the development of policies.