As of January 13, 2022, The US Supreme Court issued the decision to allow CMS to begin enforcing its vaccine mandate for covered facilities in Mississippi. The Court viewed the vaccine mandate as an infection control measure that was well within the scope of agency regulation, noting “there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what [the Secretary of Health and Human Services] does.” Thus, the Court concluded that the agency had statutory authority to require that, in order to remain eligible for Medicare and Medicaid dollars, covered facilities must ensure that their employees are vaccinated against COVID–19. The full opinion of the Court can be read here.
Wise Carter attorneys, Jennifer Scott and Matt Harrell thoroughly reviewed this decision to understand what this means for CMS facilities. Ultimately, it means that covered facilities (including but not limited to hospitals, long-term care facilities, and ASCs) should resume their efforts to comply with the CMS vaccine mandate. We expect the CMS to issue an updated guidance in response to the Court’s decision and will update clients as we learn more. CMS issued guidance on December 28, 2021, exercising agency discretion to extend the compliance deadlines in the 25 states where the mandate was not enjoined and giving facilities there until January 27th for Phase 1 compliance and until February 28th for Phase 2 compliance. CMS may extend the compliance deadlines further for facilities in Mississippi and other states affected by today’s decision, to allow them 30 and 60 days respectively to comply with the mandate. Facilities should work toward compliance as soon as possible, however, as CMS may not extend the deadlines given the current surge in infections.