Medicare Compliance & Reimbursement

Check out the latest mandate guidance.

If your facility operates in Texas — and it’s Medicare-or Medicaid-certified — you may want to dust off your plans to get your staff vaccinated ASAP.

Refresh: When the U.S. Supreme Court issued its opinion on Jan. 13, allowing the Centers for Medicare & Medicaid Services (CMS) to proceed with its COVID-19 vaccination mandate, the state of Texas was not included in the enforcement of the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule with Comment Period (IFC) (see Medicare Compliance & Reimbursement, Vol. 48, No. 2).

Why? “CMS had not previously included Texas in any prior guidance on the COVID-19 Vaccine standards, due to pending litigation concerning enforcement of the CMS COVID-19 Vaccine standards in the state of Texas,” remind attorneys W. Clifford Mull and Catherine R. Gawron with law firm Benesch in online legal analysis.

However, after much legal wrangling, the U.S. District Court for the Northern District of Texas “issued an order dismissing the lawsuit without prejudice on January 19, 2022, allowing CMS to enforce the vaccine mandate nationwide,” note attorneys Jana Baker, James Paul, and Jody Ward-Rannow with law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in online analysis.

On Jan. 20, CMS released a Texas-specific memo for state survey agency directors with fresh guidance — but doesn’t name an exact date for the Phase 1 and Phase 2 dose requirements. Instead CMS offers the following guidance to state surveyors in its memorandum:

Phase 1: For facilities in Texas impacted by the mandate, CMS indicates first dose compliance at “within 30 days after issuance of this memorandum” or Feb. 19. However, “if 30 days falls on a weekend or designated federal holiday, CMS will use enforcement discretion to initiate compliance assessments the next business day,” the agency adds in a footnote.

Phase 2: For the second dose, you’ve got 60 days to get your staff vaccinated or by March 21. CMS offers a similar footnote on holidays and such.

Latitude: For the February deadline, “a facility that is above 80 percent and has a plan to achieve a 100 percent staff vaccination rate within 60 days would not be subject to additional enforcement action,” CMS tells surveyors. “Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).” For the March deadline, CMS bumps it up to above 90 percent with a plan to achieve a 100 percent staff vaccination within 30 days.

“Within 90 days and thereafter following issuance of this memorandum, facilities failing to maintain compliance with the 100-percent standard may be subject to enforcement action,” CMS stresses in the memo. “Federal, state, Accreditation Organization, and CMS-contracted surveyors will begin surveying for compliance with these requirements as part of initial certification, standard recertification or reaccreditation, and complaint surveys 30 days following the issuance of this memorandum.”

Remember: Impacted facilities, providers, and suppliers should also revisit state regulations as they update their policies and implement staff vaccination plans. “With Texas’s state vaccine executive order in conflict with the CMS rule, Texas employers may also want to ensure their policies make clear that their CMS-compliant policies apply to CMS-covered facilities and preempt the executive order,” say Baker, Paul, and Ward-Rannow. “On the other hand, for any employee not working in a CMS-covered facility, another policy and/or the provisions of the executive order may apply to them.”

Resource: See the CMS memo on Texas compliance at www.cms.gov/files/document/qso-22-11-all-injunction-lifted.pdf.