As your federally qualified health center (FQHC) navigates vaccine mandates, it’s important to understand the legal requirements that apply to organizations participating in Medicaid or Medicare. Learn what the current vaccine mandates are, how they may interplay with state law, and the law related to confidentiality for your internal communications.
The Interim Final Rule for Vaccine Mandates
When the Center for Medicaid and Medicare Services (CMS) published an interim final rule on November 15, 2021, it established requirements regarding COVID-19 vaccine immunization of staff among Medicare- and Medicaid-certified providers and suppliers. This interim final rule requires certain providers and suppliers participating in Medicare and Medicaid programs to ensure staff are fully vaccinated for COVID-19, unless exempt, because vaccination of staff is necessary for the health and safety of individuals to whom care and services are furnished. The deadline for “full vaccination” was January 4, 2022.
The rule specifically states that if a Medicare- or Medicaid-certified provider or supplier falls under the requirements of the rule, such healthcare facilities should look to these requirements first.
Who Does the Interim Final Rule Apply To?
The vaccination requirement applies to:
- Eligible staff working at a facility that participates in the Medicare and Medicaid programs, regardless of clinical responsibility or patient contact;
- all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients;
- facility employees, licensed practitioners, students, trainees, and volunteers; AND
- individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements.
How does the Interim Final Rule Interact With Other Laws?
If facilities participate in and are certified under the Medicare and Medicaid programs and are regulated by the CMS health and safety standards known as the Conditions of Participation 11 (CoPs), Conditions for Coverage (CfCs), and Requirements for Participation, then they are expected to abide by the requirements established in the CMS Omnibus Staff Vaccination Rule.
This rule takes priority above other federal vaccination requirements. CMS’s oversight and enforcement will exclusively monitor and address compliance for the provisions outlined in the CMS Omnibus Staff Vaccination Rule, while also continuing to monitor for proper infection control procedures as established under previous regulations.
What Happens When the Vaccine Mandate Conflicts with State Law?
According to the Supremacy Clause, when a state law and federal law disagree, the federal law overrides the state law, which is what the vaccine mandate falls under. President Biden issued an executive order that requires all federal workers and contractors that do business with the federal government to be vaccinated against COVID-19. Executive orders and proclamations have the force of law, much like regulations issued by federal agencies.
Because executive orders are not legislation, Congress cannot simply overturn them. This means that federal workers and federal contractors must be vaccinated against COVID-19 or they may lose their jobs. The Biden Administration worked with Centers for Medicaid and Medicare Services (CMS) to enact a rule that requires COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities in order to protect both them and patients from the virus. The CMS recently issued the interim final rule with comment period requiring all healthcare workers to get a COVID-19 vaccine. Both CMS regulations and executive orders have the force of law.
Should Internal Vaccine Communication be Confidential?
Your organization may consider creating confidentiality policies around vaccine communication. If you do so, it’s important to carefully consider what those policies will include.
A confidential information policy should include:
- Purpose
- Definition of Confidential Information
- Protocols
- Acknowledgement of Receipt and Review
As your federally qualified health center navigates the rules around vaccine mandates, know that you have a team here to guide you. Contact the experienced health care team at Malek + Malek with any questions you may have.
This blog is not legal advice and does not create an attorney-client relationship with our firm. The content is intended to promote a general understanding of legal concepts and should not be relied upon as a substitute for obtaining legal advice from a qualified attorney regarding the reader’s specific circumstances. Readers should consult legal counsel for advice concerning their individual situations. All content is provided without any representations or warranties regarding completeness, accuracy, or timeliness.