CMS is following through on a previous Biden executive order by issuing
an interim final rule requiring all health care staff in facilities paid with federal funds -- that is, “approximately 76,000 providers" and "over 17 million health care workers across the country,” the agency says -- to be vaccinated against COVID-19 by Dec. 5, 2021.
“Facilities covered by this regulation must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021,” the rule states. These providers must be fully vaccinated by Jan. 5, 2022.
The rule specifically mentions its authority over a host of inpatient and outpatient settings, including ambulatory surgical centers, psychiatric residential treatment facilities, hospitals, home health agencies, comprehensive outpatient rehabilitation facilities (CORFs), clinics, rehabilitation agencies, community mental health centers, rural health clinics, federally qualified health centers and others.
Physician practices are not specifically mentioned. However, CMS adds, “we believe it is necessary to require vaccination for all staff that interact with other staff, patients, residents, clients or PACE program participants in any location, beyond those that physically enter facilities, clinics, homes or other sites of care.”
Citing the Supremacy Clause of the U.S. Constitution, CMS states that its regulation “preempts inconsistent state and local laws as applied to Medicare- and Medicaid-certified providers and suppliers.”
CMS acknowledges that employers must also comply with “applicable federal anti-discrimination laws and civil rights protections,” including those safeguarded by the Americans with Disabilities Act (ADA), under which employees who do not wish to be vaccinated may apply for a “reasonable accommodation.”
The original Biden executive orders, issued on Sept. 9, called for this mandate under the Emergency Temporary Standard (ETS) of the Occupation Safety and Health Administration (OSHA). But CMS said at the same time that it would create rules to effect the mandate. (
Subscribers, see Part B News
, “Federal vaccine mandate could require shot or test for nearly all health care workers,” Sept. 20).
In the current rule CMS refers to the testing alternative mentioned in the EOs, but says that upon review of the scientific evidence on testing they “found that vaccination is a more effective infection control measure. As such, we chose not to require such testing for now but welcome comment.”