On December 2, 2021, the Centers for Medicare and Medicaid Services (CMS) issued a memorandum to state survey agencies indicating that it will not enforce its Interim Final Rule (the “Rule”) regarding health care worker vaccinations while there are court-ordered injunctions against the Rule in place.

As a reminder, CMS issued the Rule on November 4, 2021, which includes vaccination requirements for health care workers, as well as requirements for vaccination policies/ procedures for Medicare/Medicaid providers and suppliers (such as nursing facilities, hospitals, dialysis facilities, and all other provider types covered by the rule), with a compliance deadline of January 4, 2022, for full vaccination. For our previous analysis of the Rule click here.

CMS issued the memorandum in response to preliminary injunctions issued in late November in the United States District Courts for the Eastern District of Missouri and Western District of Louisiana, which enjoined implementation and enforcement of the Rule nationwide. In the memorandum, CMS notes that it is appealing these rulings, and that it “remains confident in its authority to protect the health and safety of patients in facilities certified by the Medicare and Medicaid programs.”

The memorandum states that state surveyors “must not” survey providers for compliance while the injunctions are in effect, but also notes that health care facilities may “voluntarily” comply with the Rule. Litigation regarding the Rule is ongoing, and it remains to be seen whether CMS will prevail, and if so how the Rule and its compliance deadlines will be affected. Check back here for future reports as things develop.

Photo of Conor Duffy Conor Duffy

Conor Duffy is a member of Robinson+Cole’s Health Law Group and the firm’s Data Privacy + Security Team. Mr. Duffy advises hospitals, physician groups, accountable care organizations, community providers, post-acute care providers, and other health care entities on general corporate matters and health…

Conor Duffy is a member of Robinson+Cole’s Health Law Group and the firm’s Data Privacy + Security Team. Mr. Duffy advises hospitals, physician groups, accountable care organizations, community providers, post-acute care providers, and other health care entities on general corporate matters and health care issues. He provides legal counsel on a full range of transactional and regulatory health law issues, including contracting, licensure, mergers and acquisitions, the False Claims Act, the Stark Law, Medicare and Medicaid fraud and abuse laws and regulations, HIPAA compliance, state breach notification requirements, and other health care regulatory matters. Read his full rc.com bio here.

Photo of Michael Lisitano Michael Lisitano

Michael Lisitano is a member of the firm’s Health Law Group. He advises hospitals, health systems, physician groups, and other health care entities on general corporate matters and a variety of health law issues.

Photo of Anastasia Semel Anastasia Semel

Anastasia Semel’s practice is focused on health care law, with experience in transactional, regulatory and civil and commercial litigation-related matters. She represents health care entities, including physician and dental practices, in transactions from formation through succession planning, and advises her health care clients…

Anastasia Semel’s practice is focused on health care law, with experience in transactional, regulatory and civil and commercial litigation-related matters. She represents health care entities, including physician and dental practices, in transactions from formation through succession planning, and advises her health care clients on regulatory compliance and civil investigations. Read her full rc.com bio here.