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Health Law Alert: CMS Guidance Addresses Compliance with Vaccine Requirements
By Kathy Butler, Dee Harleston on January 3, 2022 at 11:00 AM

On December 28, 2021, directors from the Quality, Safety and Oversight Group at The Centers for Medicare and Medicaid Services (CMS) released a memorandum (QSO-22-07-ALL) outlining its procedures for surveying compliance under its November 5, 2021, Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (IFR). The memorandum references various attachments for specific provider types which supplement and are intended to be used in conjunction with it.

The guidance requires all Medicare and Medicaid-certified facilities to comply with the IFR’s vaccine requirements by January 27, 2022. This means facilities subject to the IFR must provide at least the first dose of a COVID-19 vaccine to 100 percent of its staff or have a pending or granted qualifying exemption. Noncompliance with the IFR will result in a variety of enforcement remedies, including civil monetary penalties, denial of payments and, as a final resort, termination of participation in Medicare and Medicaid programs.

The CMS guidance and appetite for enforcement of the IFR comes as a surprise because of the numerous legal challenges since its release in November. Although the IFR is currently stayed in 25 states, CMS has indicated that it will move forward with enforcement in the states that are not part of the ongoing litigation. The U.S. Supreme Court is expected to hear oral arguments on the IFR on January 7, 2022. For now, covered providers in the states subject to the guidance and IFR should comply until the Supreme Court has ruled on the vaccine requirements.

For questions or assistance with compliance of the CMS vaccine requirements, please contact Kathy Butler or Dee Harleston in Greensfelder’s Health Care group.

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