CMS vaccine mandate challenged

CMS published an interim final rule (IFR) on November 5, 2021, that requires the staff of most Medicare and Medicaid providers to be vaccinated against COVID-19 as a condition of Medicare and Medicaid participation. Since the final rule was issued, multiple states have filed suit alleging federal law violations, and Alaska is the most recent state to join in the litigation. Health care workers must receive their first vaccine dose by December 5 and be fully vaccinated no later than January 4, 2022, under the rule. Unlike the recent OSHA rule, CMS’ final rule for health care workers does not have language allowing for employees to undergo testing rather than be vaccinated. CMS’ rule does make exceptions for medical or religious reasons.

The rule covers 76,000 health care facilities, and more than 17 million health care workers, according to a release by the White House. The rule applies to employees regardless of whether their positions are clinical or non-clinical. Included in the mandate are employees, students, trainees, and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. Also included are individuals who provide treatment or other services for the facility under contract or other arrangements. Hospitals, ambulatory surgery centers, dialysis facilities, home health agencies, and long-term care facilities are among the types of facilities covered. The rule does not directly apply to other health care entities, such as physician offices, that are not regulated by CMS.

Alaska and other states—Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming—argue that the mandate is unconstitutional. Specifically, the states are seeking an injunction to prohibit CMS from enforcing the mandate on grounds that the rule violates the Tenth Amendment of the U.S. Constitution, the federal Administrative Procedures Act, and other federal laws.

Source: Written by Cathleen Calhoun, J.D.

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