Federal Vaccine Mandate

On November 4, 2021, CMS announced an interim final rule (86 Fed. Reg. 61,555 (Nov. 5, 2021) that would have required staff working in facilities certified by Medicare or Medicaid to be fully vaccinated against COVID-19 by January 4, 2022, and to receive their first injection prior to December 6, 2021. This vaccine mandate was challenged in a few court jurisdictions, resulting in preliminary injunctions being issued against the Federal government’s implementation pending further court proceedings. As a result, CMS has suspended its vaccine mandate enforcement while these preliminary injunctions are in effect, see CMS Guidance, and surveyors must not survey providers for compliance with the federal vaccine mandate’s requirements.

NY State Proposed SNF Regulations

As we previously reported, DOH has published proposed regulations implementing various legislation enacted earlier this year, including NY PHL §§ 2828 and 2895-b (profit caps, direct patient care minimum spending ratios, and staffing levels). The proposed regulations do not appear to limit or mitigate the harsh effects of the legislation on nursing homes in any meaningful way. The comment period for writing to DOH in an effort to persuade the agency to modify the proposed regulations is open and set to expire on January 18, 2022. Absent court intervention challenging the legislation and the implementing regulations, it is unlikely that nursing homes will realize any relief on these pivotal issues, although submission of comments to DOH does occasionally yield favorable results.

We continue to monitor the status of the federal vaccine mandate litigation for a final determination; regarding the State SNF laws and proposed regulations, we are available to assist with comment letters or issues resulting from the implementation of these laws/regulations.