On January 13, 2022, the U.S. Supreme Court, in a 5-4 decision, lifted lower court injunctions that had blocked enforcement in 25 states of the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule requiring healthcare worker vaccinations (CMS Rule). As previously discussed, the CMS Rule applies to a number of enumerated healthcare services, support or suppliers that are regulated under CMS standards, including hospitals, nursing homes, rehabilitation clinics, and many other facilities that receive Medicare or Medicaid funds. The CMS Rule applies to all current and future employees at covered facilities, regardless of whether the employee holds a clinical or non-clinical position, and reaches anyone who provides treatment or services to the facility under contract or other arrangements.

What did the Supreme Court Say?

The majority opened its decision by noting that CMS’s “core mission . . . is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” It is through that prism that the Court conducted its analysis. The Court went on to recognize that CMS has a long history of establishing detailed conditions with which health care facilities must comply in order to receive Medicare and Medicaid funds, and that these conditions include maintaining and enforcing an infection prevention and control program. As such, the Court concluded that CMS had acted squarely within the authority delegated to it when it published the CMS Rule. “After all,” the Court found, “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: ‘first, do no harm.’”

The Court did recognize that to the extent the CMS Rule requires vaccination for covered staff, it goes further than previous CMS regulations. The Court found the reach of the CMS Rule was justified for two reasons, however. First, CMS has never before had to address an infection problem of the scale and scope of COVID-19. Second, the Court recognized that many states have in fact long adopted and enforced influenza vaccine mandates for healthcare facilities, and CMS argued (and the Court credited) that these pre-existing state-level requirements were part of why CMS had not previously enacted a vaccine mandate. Under the circumstances surrounding COVID-19, however, the Court found that the vaccine mandate contained within the CMS Rule was not only legal, but “a straightforward and predicable example of the ‘health and safety’ regulations that Congress has authorized [CMS] to impose.”

Lastly, the Court found that the CMS Rule was not arbitrary and capricious, and that CMS had good cause to delay notice and comment, dispensing with some of the other arguments that challengers to the CMS Rule had made.

What’s Next for Employers Covered by the CMS Rule?

Although the Supreme Court’s decision was technically not a ruling on the final merits,¹ employers covered by the CMS Rule must now take steps to comply with its mandates. Specifically, under the current updated deadlines provided by CMS guidance issued to State Survey Agency Directors, all facilities covered by the CMS Rule must, by January 27, 2022:

1. Require that 100% of covered staff receive their first dose of the COVID-19 vaccine, except those with a pending exemption request and those whose vaccination was temporarily delayed per CDC recommendations. The CMS has announced it will exercise some discretion in enforcing this deadline. Namely, if a facility can show it has more than 80% staff vaccination by January 27 and a plan to achieve 100% vaccination within 60 days, it will be exempted from enforcement actions.

2. Enact policies and procedures to comply with the CMS Rule.

Then, by February 28, 2022, covered facilities must ensure that 100% of covered staff are fully vaccinated, except those with a granted exemption request and those having a temporary delay in receiving the vaccination. Again, though, there is some enforcement discretion. A facility with a more than 90% vaccination rate and a plan to achieve a 100% staff vaccination rate within 30 days of February 28 will be exempted from enforcement actions.

Lastly, some states have enacted laws limiting vaccination mandates. However, CMS’s express position is that the CMS Rule preempts any state laws that conflict with its Rule. Employers covered by the CMS Rule should consult with counsel to navigate the interplay between the CMS Rule and any state laws that may impose additional or potentially conflicting requirements.

Entities covered by the CMS Rule are encouraged to work with counsel to prepare their vaccination policies, address exemption requests, and otherwise ready themselves for compliance with the Rule.