Courtesy of the National Association for Home Care & Hospice

Two federal court rulings currently in place have created a nationwide preliminary injunction prohibiting the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health and Human Services (HHS) from enforcing the recent Interim Final Rule that requires Medicare-and Medicaid providers subject to Medicare conditions of participation to have all staff vaccinated, with some exceptions.

Late on Thursday, December 2, CMS posted memo QSO-22-04-ALL notifying state survey agency directors that it has suspended activities related to the implementation and enforcement of the vaccine mandate rule due to the preliminary injunctions that are in effect. As a result, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule. Since enforcement of the rule is pending the outcome of the litigation, as has occurred with the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), providers can suspend efforts to comply with the CMS/HHS rule. However, home health agencies may voluntarily choose to comply with the Interim Final Rule.

Ultimately, the National Association for Home Care & Hospice (NAHC) anticipates that the legal issues will either be subject to a higher court’s ruling, or the Administration will take action to modify its rules. It remains possible that the District Court rulings will be reversed and that the original compliance deadlines will be held in place. While that outcome is not highly likely, a good faith compliance effort will be the best protection a provider can have against any enforcement action.

The fate of the various ongoing U.S. District Court lawsuits is uncertain. Providers are urged to continue to undertake, in good faith, all necessary measures to be compliant with Phase 1 and Phase 2 requirements of the rule except for any steps that would have been taken with staff that is not vaccinated or subject to an exception. Further, providers are advised to document any barriers to compliance.