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On 12/28/21, CMS released its updated guidance on its forthcoming 2022 vaccine mandate.
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The new guidance announces CMS's phased enforcement plan for the vaccine rule released in November. As you may recall that rule applies to most facilities and would include hospital-owned ambulance providers but does not directly cover ambulance suppliers. A court had issued a stay, temporarily halting the rule nationwide, and then another court lifted the stay except for the states that had directly challenged the rule. Currently, 25 states are directly challenging the CMS vaccine mandate rule. These states are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. CMS states that it will enforce the rule in the other 25 states, the District of Columbia, and the territories with a phased-in 30/60/90-day enforcement approach (starting from the guidance memo date 12/28/21).
As a quick refresher, even though the CMS vaccine rule does not directly apply to ambulance suppliers, the rules do require hospitals, hospices, CAHs, and SNFs to require COVID-19 vaccines for "individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or by other arrangement." So, even though the mandate does not directly cover an ambulance supplier's staff, there is a very real possibility that most hospices, hospitals, CAHs, and SNFs will take the position that ambulance staff must be vaccinated to come into the facility to provide care. We do not think the rule requires facilities to impose such a requirement on a non-contracted, community 911 emergency response agency, though some facilities may take that position. However, we think a facility would be on solid ground to interpret the rule to require their contracted, non-emergency ambulance suppliers to utilize only vaccinated staff to serve the facility on a scheduled/contracted/non-emergency basis.
Ambulance services should certainly be prepared to receive requests – or requirements – from the facilities they serve to require all ambulance staff to be fully vaccinated against COVID-19. Again, while the CMS rule does not apply to ambulance suppliers, the practical effect is that facilities may require vaccinations of ambulance staff who come to their facilities.
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