News & Resources

Publications & Media

New Guidance and New Deadlines for CMS Vaccine Mandate

Health & Life Sciences Sarah E. Coyne, Jon R. Kammerzelt, Rachel L. Dykema

For regulated health care entities in California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin, on December 28, 2021, the Centers for Medicare and Medicaid Services ("CMS") released guidance for surveyors with new compliance dates of January 27, 2022 (for first COVID-19 vaccine dose) and February 28, 2022 (for second dose where applicable). CMS may begin surveying in those states on January 27, 2022 (30 days after publication of the guidance) and may implement penalties for noncompliance in those states. The guidance has specific details and expectations for each type of provider and the guidance specifically applicable to hospitals is Attachment D.

The guidance will not – as of right now – be enforceable in other states, although the United States Supreme Court will hear argument on this mandate and other mandates on January 7, 2022. The history of the CMS vaccine mandate is set forth in our previous client alerts linked below.

The guidance gives important detail that should help hospitals and other health care entities develop their policies and processes:

  • Ultimately CMS expects 100% of facility staff to be vaccinated as required by the compliance dates of January 27, 2022 (first dose) and February 28, 2022 (second dose), or have an approved medical or religious exemption, or an approved delay consistent with CDC guidelines. CMS can start surveying for this in the states above on January 27, 2022 (30 days from publication of the guidance).
  • CMS is noting that there will be a reprieve for MOSTLY compliant entities – more of a reprieve for those surveyed prior to February 28, 2022 (first working day after 60 days from publication of the guidance) but still a reprieve after that date, as follows:
    • Where CMS surveys the entity by January 27, 2022 but before February 28, 2022: If upon survey 100% of staff have NOT been vaccinated with at least one dose but at least 80% of staff have had at least one dose (or have an exemption or approved delay) AND there is a plan in place to achieve full compliance, CMS will issue a notice of non-compliance and the facility will have an additional 60 days from that notice to come into compliance.
    • Where CMS surveys the entity on or after February 28, 2022: If upon survey 100% of staff are NOT vaccinated with at least one dose but at least 90% of staff have had at least one dose (or have an exemption or approved delay) AND there is a plan in place to achieve full compliance, CMS will issue a notice of non-compliance and the facility will have an additional 30 days from that notice to come into compliance.

What does this mean for your entity?

  • If your health care entity is in one of the states listed above and does not already mandate the vaccine, dust off the policy and procedures and communications that you were expecting to have to implement by December 6/ January 4 and be ready to implement them by January 27, 2022/ February 28, 2022 AND keep your eye on the Supreme Court.
  • If your health care entity is in one of the other states (not listed above), you can continue as you have been, but keep your eye on the Supreme Court.
  • There are still some unanswered questions which we may have to face depending on the Supreme Court’s decision including whether the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) issued on November 5, 2021 will apply to health care if it withstands Supreme Court scrutiny and the CMS vaccine mandate doesn’t … but we’ll cross that bridge when and if we come to it!

You can see our prior updates on the CMS vaccine mandate below:

If you have any questions regarding the new CMS vaccine mandate guidance, please contact your local Quarles & Brady attorney or:

Payment Portal

You are leaving the Quarles & Brady website and being directed to the bill presentment and paying service offered by a third party provider. If you do not wish to continue to the site, click Close or use the Back button on your web browser to return the Quarles & Brady website.