COVID | Vaccine Mandate Insights | February 25, 2022

Mandate Minute: Week 14

BY Dee Pekruhn

This Week’s Highlights:

Volume Twenty-Four: Air Date 2.23.22. “State Surveyors and Vaccine Mandates”

Several states have banned vaccine mandates for all public and private employers. Florida, for example, has indicated that it will not enforce the CMS mandate of vaccination for healthcare workers. A CMS letter to state survey agencies dated February 9th outlines the responsibilities of state survey agencies to “Survey to the Entirety of Medicare and Medicaid Health and Safety Requirements under the 1864 Agreement”.

While not speaking specifically to vaccine mandates, the CMS memo makes it clear that to fulfill their obligations, state survey agencies must assess compliance with all Conditions of Participation, Conditions for Coverage, and Requirements for Participation in accordance with CMS regulations and instructions. CMS allocates funding to each state for the reasonable costs of performing the functions specified in the 1864 Agreement and for Medicare’s fair share of costs related to Medicare facilities.

The letter indicates that those payments may be reduced for failure to assess compliance with all CMS regulations. Here is the exact language in the letter:

“In making the Survey and Certification budgetary allocation, CMS may, among other things, adjust the amount allocated to States that refuse to survey and certify compliance with all applicable Medicare and Medicaid health and safety regulations. These state allocations would be reduced for the current fiscal year and each successive year until the state resumes full oversight of the entirety of Medicare and Medicaid regulations. These funds would be used by CMS to support federal oversight alternatives in the state (including contractor support) to safeguard the health and safety of those receiving care from Medicare and Medicaid certified providers and suppliers. The scope of the allocation reduction will be commensurate with the impact of the State actions and the federal resources needed to provide appropriate oversight of providers and suppliers.”

So, while healthcare providers in some states may be caught between state and federal expectations, CMS seems to be making it clear that full compliance is expected.