By Jacqueline Del Villar and Kevin Troutman, Fisher Phillips
With major legal challenges now behind it, the Centers for Medicare and Medicaid Services (CMS) is moving forward with the implementation and enforcement of a rule that will require essentially all “staff” at covered healthcare facilities in Texas to have received COVID-19 vaccinations. The first major deadline is now just days away.
When the U.S. Supreme Court ended a whirlwind of legal challenges by ruling that CMS could proceed with enforcement of its vaccination mandate, Texas was the only state not directly covered by the ruling. Before the high court’s decision, injunctions had blocked implementation of the CMS mandate for certified Medicare and Medicaid participants in about half of the country. Even though Texas was not a party to the lawsuits that the Supreme Court decided, the state soon withdrew its own legal challenge, and the injunction that had blocked the mandate in the state was also removed. Due to the impacts of recent litigation, CMS updated its compliance and enforcement guidelines. Accordingly, covered CMS providers in Texas now have until February 22, 2022, to implement policies and procedures to ensure that 100% of all staff have received at least one dose of the vaccination or have been properly granted certain exemptions or delays. By March 15, 2022, those facilities must ensure that all staff are fully vaccinated or have been granted appropriate exemptions of delays. Failure to fulfill these requirements can result in penalties, which can include denial of payments or even termination of participation in the Medicare and Medicaid programs. Although CMS has emphasized that its goal is to help covered facilities achieve compliance, the stakes are obviously high in navigating through these requirements. As explained below, compliance in some instances can be tricky and present various challenges.
Who Must be Vaccinated and How Should Accommodation Requests be Handled?
The CMS Mandate requires all covered entities (21 types of healthcare organizations certified by Medicare or Medicaid) to document its policies and procedures for ensuring that all staff has been vaccinated. The mandate does not cover settings such as assisted living facilities or group homes, nor physician’s offices that are not subject to CMS health and safety regulations. Individuals who are based in these facilities may still be subject to the vaccination mandate, however, if they work in healthcare settings that are covered. Tracking staff vaccination status is an important and potentially complicated aspect of complying with CMS requirements.
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This mandate reaches many individuals who were well beyond the scope of the controversial OSHA ETS that the Supreme Court shut down. Under the CMS rule, the term “staff” is very broad, encompassing not only employees but also other licensed practitioners, students, trainees, and volunteers, as well as individuals who provide care or services for the facilities or their patients under contract or other arrangements. Covered entities have the duty to provide reasonable medical and religious accommodations as required by federal law. While this provision encompasses employees, it is less clear how far providers must go in accommodating non-employees.
Unique Challenges Presented by Accommodation Requests
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The process of documenting and evaluating employees’ accommodation requests can be more exacting than the process that employers are accustomed to following pursuant to the Americans with Disabilities Act (ADA). For example, if an accommodation request is based upon a contraindication to vaccination, the CMS rule requires a qualified healthcare provider to specify the “recognized clinical contraindication” and the specific vaccine(s) to which it is applicable. Employers are also receiving unprecedented numbers of accommodation requests based upon sincerely held religious beliefs. Many employers face challenges in handling these requests for several reasons. Besides these issues being deeply personal and inherently more subjective, the applicable accommodation standards are different than those encountered under the ADA.
Another frequent challenge for employers is concern about losing employees over vaccination mandates. Already stretched thin by two years of the pandemic, everyone in the healthcare industry is stressed. And they are concerned in many places about staffing shortages, a challenge they obviously do not want to exacerbate. Nonetheless, CMS expects accommodations to be provided to the extent “required by federal law.” It also intends its rule to override the “applicability of any state or local law” that provides “broader exemptions than provided” for by federal law or is inconsistent with its rule. In other words, CMS views its requirements to supersede Governor Abbott’s Executive Order that barred entities from compelling vaccinations pursuant to exemptions such as “personal conscience,” which are much broader than those permitted under federal law.
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Additionally, CMS has stated that it will be looking at providers’ policies and procedures, as opposed to analyzing individual accommodation requests. Nevertheless, unusually high accommodation rates, especially if the requests appear to be very similar or “cookie-cutter” in nature, are likely to attract closer scrutiny.
Regardless of the reason for any accommodation, the mandate certainly emphasizes that covered entities must impose additional safety precautions to minimize the risk of transmission to patients, thereby maintaining the priority of protecting the health and safety of patients. Employer policies must include explanations of the process for requesting exemptions or accommodations, as well additional safety precautions that may be applicable for those who receive exemptions. The mandate also requires, among other things, maintaining a list of all staff and their vaccination status for review by compliance surveyors.
Actions to Take in Texas Now
With deadlines fast approaching, covered entities should be preparing and, working out the details of their policies and communicating them to all staff. Initially, preparation should at least include the following steps:
- Confirm Whether the CMS Mandate Applies: Just because an entity receives Medicare or Medicaid funds does not, by itself, necessarily mean that a facility is covered by this rule. It applies only to certified providers. Certification involves an application and surveying process, adherence to conditions of participation, and is subject to periodic follow-up surveys. So, confirm coverage first.
- Track Vaccination Status and Issue a Policy by February 22:If covered, employers must determine and continue to track the vaccination status of their staff and develop policies describing how the company has implemented applicable tracking, compliance, recordkeeping, documentation, and training requirements if not already. Employers should also make sure to promulgate procedures for considering and responding to requests for accommodation, keeping in mind confidentiality requirements. Finally, employers should prepare for staff resistance and complaints related to these requirements, as well as inspections by CMS in the coming weeks or months.
- Prepare for Accommodation Requests: As explained above, this process can be challenging, especially as mass-produced exemption forms continue to pop up on the internet and social media. Employers must honor employee rights and fulfill the duty to make an individualized inquiry of all accommodation requests. Prompt and appropriate processing of those requests is crucial to complying with both the CMS Rule and other applicable laws. The documentation of this process is often of equal importance to the decision that an employer ultimately makes in approving or denying accommodation requests, even though this process can take time.
As explained above, despite all the fits and starts that the CMS mandate has encountered, it is now being implemented and enforced around the country. Covered entities in Texas must therefore prepare, not only to implement the major (vaccination) requirement but to deal with the less-obvious issues that are likely to arise, including those discussed above.