The Volokh Conspiracy
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The Occupational Safety and Health Administration (OSHA) is not the only federal agency to have issued an emergency COVID-19 rule today. The Center for Medicare and Medicaid Services also issued an emergency rule today, requiring vaccination of employees at facilities that provide Medicare or Medicaid Services. I previewed this rule when first announced it in September. Of note, the CMS rule takes effect more quickly and is more stringent than the OSHA rule I discussed earlier today.
The core of the CMS rule is a requirement that all employees at covered facilities who interact with patients or other staff get vaccinated. Covered facilities are most entities that are certified to provide Medicare or Medicaid Services, including:
Ambulatory Surgical Centers, Hospices, Programs of All-Inclusive Care for the Elderly, Hospitals, Long Term Care facilities, Psychiatric Residential Treatment Facilities, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Home Health Agencies, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, Clinics (rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services), Community Mental Health Centers, Home Infusion Therapy suppliers, Rural Health Clinics/Federally Qualified Health Centers, and End-Stage Renal Disease Facilities.
This would seem to cover the waterfront. According to CMS, the only exempt Medicare and Medicaid providers are Religious Nonmedical Health Care Institutions (RNHCIs), Organ Procurement Organizations (OPOs), and Portable X-Ray Suppliers. It also does not apply to assisted-living facilities or group homes or home and community-based service providers, as such providers are not subject to CMS's health and safety regulations.
For covered facilities, the vaccine requirement is now a condition of participating in Medicare or Medicaid—like CMS"s other health and safety rules—and it takes effect in only one month. (Specifically, all employees must have received at least their first vaccine does within one month.)
Failure to comply can result in penalties and, in extreme cases, termination of a facility's ability to participate in Medicare or Medicaid. Although this may seem coercive, I am skeptical that a conditional spending challenge to this rule would have traction, for the reasons I identified in my prior post.
The CMS requirement is both more stringent and far-reaching than the OSHA standard. First, it applies to all employees, volunteers, and others who provide services at covered facilities (including, for example, physicians with admitting privileges who may occasionally show up on site to provide care). The only people who are categorically exempt are those who are completely offsite and do not interact with patients or other staff.
The CMS rule requires covered facilities to provide religious and medical exemptions, but only insofar as this would be required under federal law. Specifically, covered facilities must allow religious exemptions insofar as this is required by Title VII of the Civil Rights Act, and medical exemptions for those with recognized medical conditions for which vaccines are contraindicated, as this would be a reasonable accommodation under the Americans with Disabilities Act. The regulation does not otherwise provide for exemptions or opt outs. So, unlike with the OSHA rule, facilities cannot comply by offering weekly testing combined with a masking requirement.
Like OSHA, CMS claims that this rule preempts any inconsistent state laws, such as state-law prohibitions on employer vaccine mandates. The CMS emergency rule is being issued as an Interim Final Rule. So the rule will take effect while the agency goes through a notice and comment period before issuing a final rule.
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