Staff Vaccination Requirements for Medicare and Medicaid Certified Health Care Providers

On October 26, 2022, the Centers for Medicare & Medicaid Services (“CMS”) issued a revised memorandum (“CMS Memo”) to all state survey agency directors with respect to staff vaccination requirements for all Medicare and Medicaid-certified health care providers and suppliers (collectively, “Providers”). 

In summary, CMS states that it expects all Provider staff to be fully vaccinated unless exempted as required by law, or delayed as recommended by the CDC and that staff vaccination rates under 100% constitute noncompliance.  For Providers who are not in compliance, CMS has a variety of established enforcement remedies. For nursing homes, home health agencies, and hospices (beginning in 2022), this includes civil monetary penalties, denial of payments, and—as a final measure—termination of participation from the Medicare and Medicaid programs. The sole enforcement remedy for noncompliance for hospitals and certain other acute and continuing care providers is termination; however, CMS’s primary goal is to bring Providers into compliance.  Accordingly, termination would generally occur only after providing a Provider with an opportunity to make corrections and come into compliance.

The CMS Memo provides specific guidance and instructions to surveyors when reviewing a Provider’s staff vaccination compliance and surveyors will only be expected to perform staff vaccination compliance reviews as part of initial certification, standard recertification or reaccreditation surveys, and in response to specific complaint allegations related to staff vaccination requirements.  More importantly, additional information, expectations, requirements, and potential enforcement actions or penalties for your specific Provider-type can be found in Attachments A through N of the CMS Memo.  A list of the covered Providers is set forth below.

• Attachment A: Nursing Homes
• Attachment B: ASCs
• Attachment C: Hospices
• Attachment D: Hospitals
• Attachment E: Psychiatric Residential Treatment Facilities
• Attachment F: Intermediate Care Facilities for Individuals with Intellectual Disabilities
• Attachment G: Home Health Agencies
• Attachment H: Comprehensive Outpatient Rehabilitation Facilities
• Attachment I: Critical Access Hospitals
• Attachment J: Outpatient Physical Therapy
• Attachment K: Community Mental Health Centers
• Attachment L: Home Infusion Therapy
• Attachment M: Rural Health Clinics/Federally Qualified Health Centers
• Attachment N: End-Stage Renal Disease Facilities

Please see the CMS Memo and Attachments A-N.  Any language that is set forth in red is new/revised for your specific provider-type as of October 26, 2002.

If you have any questions about the requirements, please contact a member of our Health Law Practice Group.