Dear USET/USET SPF Family,
We write to provide an update regarding the removal of a nationwide injunction preventing the implementation and enforcement of the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule (IFR) mandating COVID-19 vaccination for most healthcare workers at certain healthcare facilities certified by CMS. This and other recent federal vaccine mandates have generated considerable litigation.
On November 30, 2021, the United States District Court for the Western District of Louisiana issued a nationwide preliminary injunction pausing the implementation and enforcement of the IFR. However, on December 15th, the the US Court of Appeals for the Fifth Circuit lifted the nationwide injunction, leaving in place the injunction for just those states that brought the Louisiana litigation—Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio. This was followed by yet another preliminary injunction from a federal district court in Texas in response to litigation brought by the state.
On November 29, 2021, the United States District Court for the Eastern District of Missouri issued a preliminary injunction against the implementation and enforcement of the IFR in ten states, which continues to stand.
This means that CMS may continue to move forward with implementation of its IFR in 25 states, but is currently prohibited from doing so in another 25. For more information on this litigation, we enclose a helpful article.
CMS continues to challenge these lawsuits in court and currently, the compliance dates (December 6, 2021 for a first vaccine dose and January 4, 2022 for the second) under the IFR remain unchanged. Public comments on the IFR remain due on January 4, 2022. USET SPF plans to submit comments, as well as advocate for meaningful Tribal consultation in accordance with CMS’ obligations to Tribal Nations.
Background
The CMS Interim Final Rule (IFR) was issued on November 4th. It would require that covered facilities develop a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 6, 2021. All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022. The regulation also provides for exemptions based on recognized medical conditions or religious beliefs, observances, or practices. Facilities must develop a similar process or plan for permitting exemptions in alignment with federal law.
While the rule clearly applies to IHS facilities, its application to the diverse array of Tribal facilities is less clear. After several discussions between Tribal leaders, organizations, and advocates, CMS updated its FAQ document to include the following information:
“Q: Does this requirement apply to Indian Health Service (IHS) facilities?
A: Generally, yes. Indian Health Service facilities are regulated under the CoPs, therefore the staff vaccination requirement outlined within this regulation applies. Certain Tribal FQHCs that do not participate in Medicare but only in Medicaid may not be subject to these requirements.”
We have been informed by CMS staff that a good way to confirm whether your facility is covered by the IFR is to visit CMS’ Quality, Certification, and Oversight Reports (QCOR) website and perform a search for your facility. We should note that laboratory-only facilities are not covered.
For more information on how and whether this mandate applies to your Tribal health facility, USET SPF strongly encourages you to contact your legal counsel. We will continue to monitor this issue and provide updates as they develop.
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