CMS Requires COVID-19 Vaccine for Health Care Workers at all Facilities Participating in Medicare and Medicaid

On Nov. 4, 2021, the Facilities for Medicare and Medicaid (CMS) launched a brand new Interim Closing Rule (IFR) concerning workers vaccination at services that take part in the Medicare and Medicaid applications. The IFR requires coated employers to make sure that workers obtain their first dose no later than Dec. 5, 2021 and obtain full vaccination no later than Jan. 4, 2022.

The vaccine rule that was additionally launched on Nov. 4, 2021 by the Occupational Security and Health Administration (OSHA) doesn’t apply to staff of well being care entities who’re coated below the CMS IFR. Nonetheless, staff of well being care suppliers who aren’t topic to the CMS IFR could also be topic to the OSHA vaccine rule if the ability has greater than 100 staff. For extra data on the OSHA vaccine rule, please click on here.

Justification for the Rule

CMS cited a lot of causes for the IFR, together with the danger unvaccinated workers pose to sufferers, experiences of people foregoing well being care resulting from issues of contracting COVID-19 from well being facility workers, disrupted well being care operations resulting from contaminated workers, and low vaccination charges amongst well being care workers.

Scope of Protection

The necessities of the IFR apply to well being care services that take part in Medicare and Medicaid and which are topic to Circumstances or Necessities of Participation, together with however not restricted to:

  • Ambulatory surgical facilities;

  • Hospices;

  • Hospitals, similar to acute care hospitals, psychiatric hospitals, hospital swing beds, long-term care hospitals, and kids’s hospitals;

  • Lengthy-term care services;

  • Dwelling well being businesses;

  • Complete outpatient rehabilitation services;

  • Crucial entry hospitals;

  • Dwelling infusion remedy suppliers; and

  • Rural well being clinics/federally certified well being facilities.

Whereas the IFR doesn’t straight apply to doctor workplaces, which aren’t regulated by CMS Circumstances or Necessities of Participation, physicians might however be required to vaccinate because of their relationships with different well being care entities. For instance, the IFR requires hospitals to implement insurance policies and procedures to make sure “individuals who provide care, treatment, or other services under contract or by other arrangement” are totally vaccinated.

Lined Personnel

The IFR requires vaccinations for workers who routinely carry out care for sufferers and purchasers inside and exterior of the ability, similar to dwelling well being, dwelling infusion remedy, hospice, and remedy workers. CMS’s vaccination requirement additionally extends to all workers who work together with different workers, sufferers, residents, or purchasers, at any location, and not simply those that enter services. Nonetheless, workers who present providers 100% remotely—that’s, workers who by no means come into contact with different workers, sufferers, residents, or purchasers—are not topic to the IFR vaccination necessities. Moreover, suppliers and suppliers are not required to make sure IFR vaccination compliance of one-off distributors, volunteers, or professionals, similar to (a) those that present rare advert hoc non-health care providers (e.g. annual elevator inspectors), (b) those that carry out completely off-site providers (e.g. accounting providers), or (c) supply and restore personnel.

Definition of Full Vaccination

CMS considers “full vaccination” as 14 days after receipt of both a single-dose vaccine (such because the Johnson & Johnson vaccine) or 14 days after the second dose of a two-dose major vaccination collection (such because the Pfizer or Moderna vaccines). At the moment, CMS will not be requiring the extra (third) dose of mRNA vaccine for reasonably/severely immunosuppressed individuals or the “booster dose” in order for workers to be thought-about “fully vaccinated.” Moreover, CMS considers people receiving heterologous vaccines—doses of various vaccines—as satisfying the “fully vaccinated” definition as long as they’ve acquired any mixture of two doses. In an effort to gauge compliance, CMS is requiring that suppliers and suppliers observe and securely doc the vaccination standing of every workers member in addition to vaccine exemption requests and consequence. The IFR doesn’t specify that weekly testing, masking, and social distancing are a substitute for vaccination, that means employers should guarantee all staff are both (1) totally vaccinated or (2) exempted below a permissible exemption.


The IFR explicitly gives that employers should proceed to adjust to anti-discrimination legal guidelines and civil rights protections which permit staff to request and obtain exemption from vaccination resulting from a incapacity, medical situation, or sincerely held non secular perception or observe. Exemptions needs to be offered to workers with acknowledged medical circumstances for which a vaccine is contraindicated as an inexpensive lodging below the People with Disabilities Act. For exemptions for a sincerely held non secular perception or observe, CMS encourages well being care entities to discuss with the Equal Employment Alternative Fee’s Compliance Guide on Spiritual Discrimination. Regardless of the power to supply an exemption, CMS states that exemptions could also be offered to workers solely to the extent required by regulation, and that requests for exemption shouldn’t be offered to those that search solely to evade vaccination. CMS additionally notes at size that the Meals and Drug Administration considers authorized vaccines secure. Accordingly, CMS will probably be unwilling to excuse supplier and provider noncompliance resulting from staff refusing vaccination based mostly on fears about security.


Though the IFR doesn’t determine particular penalties for non-compliance, CMS is predicted to make use of enforcement instruments similar to civil cash penalties, denial of fee for new admissions, or termination of the Medicare/Medicaid supplier settlement. CMS will make the most of State Survey Companies to assessment compliance with the IFR by means of normal recertification surveys and grievance surveys. Noncompliance with the IFR will likely be addressed by means of established classification channels of “Immediate Jeopardy,” “Condition,” or “Standard” deficiencies.


Whereas CMS acknowledges that some states and localities have established legal guidelines to forestall obligatory compliance with vaccine mandates, CMS in the end considers the Supremacy Clause of america Structure as preempting inconsistent state and native legal guidelines as utilized to Medicare- and Medicaid-certified suppliers and suppliers.

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