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Florida Medicare/Medicaid Certified Providers at a Crossroads; Conflict Between Federal and Florida Law on the CMS Vaccination Mandate

Published: November 26th, 2021

By: Nichole M. Mooney

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On November 18, 2021, Governor Ron DeSantis signed legislation, effective immediately, designed to limit COVID-19 vaccination mandates by or required for private employers. Florida Statute § 381.00317, was enacted to “stop the coercion” of the recent federal rules requiring employers to mandate employees be vaccinated against COVID-19. The new Florida law does prohibit vaccination mandates. However, it requires that employers allow exemptions from the mandate based on five reasons:

  1. Medical reasons, including pregnancy or anticipated pregnancy. The medical reasons are not required to be a disability as defined under the Florida Civil Rights Act or the ADA. The employee must provide an exemption by a licensed physician, physician’s assistant, or advanced practice registered nurse certifying that the COVID-19 vaccine is not in the best medical interest of the employee.
  2. Religious reasons. The employee must simply state that the employee is declining the vaccine based on a sincerely held religious, moral, or ethical belief. No further information from the employee is required as to the nature of the belief or why that belief prevents vaccination.
  3. COVID-19 immunity. The employee must provide a statement demonstrating competent medical evidence that the employee is immune to COVID-19 “documented by the results of a valid laboratory test performed on the employee.”
  4. Periodic testing at no cost to the employee.
  5. Use of personal protective equipment (PPE). PPE must be supplied by the employer and the equipment must comply with the employer’s reasonable written requirement to use PPE.

The Department of Health has created sample forms for each exemption which can be found here.  Notably, it appears that the employer must provide the exemption based on the documentation without further consideration other than the completeness of the information. Regulations on the specifics of these exemptions are forthcoming.  Failure to comply may result in fines.

 

CMS Rule Covering Medicare and Medicaid Certified Providers and Suppliers

On November 4, 2021, the Centers for Medicare and Medicaid Services (CMS) promulgated an interim rule mandating vaccination for staff of Medicare and Medicaid Certified Providers and Suppliers such as: ambulatory surgical centers, hospices, hospitals, long-term care facilities (including skilled nursing facilities), home health agencies, and many other facilities and agencies. The rule does not apply to physicians’ offices.

  • See here for information promulgated by CMS on the rule. 
  • A helpful FAQ is here.
  • And slideshow here.

The Rule requires basically three things: a process or plan for vaccinating all eligible staff; a process or plan for providing exemptions and accommodations for those who are exempt; and a process or plan for tracking and documenting staff vaccinations. As to the vaccination mandate, the rule requires staff who enter the covered facilities, including providers with privileges, to be vaccinated. It applies regardless of whether the staff members are clinical or non-clinical and includes employees, licensed practitioners, students, trainees, volunteers and independent contractors. The rule also applies to all staff unless they are full-time teleworking staff and will not encounter others at the facility. Staff must be fully vaccinated unless the staff member is eligible for a reasonable accommodation based on disability or medical conditions or a sincerely held religious belief. The rule does not provide any exemption for COVID-19 immunity, regular testing or use of PPE.

            Eligible individuals must be fully vaccinated on or before January 4, 2022. If the individual is receiving a two-dose primary vaccine, such as Moderna or Pfizer, the first dose must be received by December 6, 2021. An individual is fully vaccinated 14 days after receipt of either the single dose vaccine or the second dose of the two dose primary vaccination series (Moderna or Pfizer). Boosters are not required to be fully vaccinated.

Failure to comply with the rule may result in fines, denial of payment and/or termination of the Medicare/Medicaid Provider Agreement.

 

Conflicts

Because the Florida law provides for exemptions not recognized by the CMS or in a manner not recognized under federal law, Florida employers subject to the CMS rules are caught between complying with the federal rules, and possibly being fined by Florida, or complying with Florida law and possibly being fined by CMS or losing Medicare and Medicaid funding and certification. A conflict exists because employers cannot comply with the requirements relating to vaccination mandates under both laws.

The Supremacy Clause of the United State Constitution provides that in the event of a conflict between state and federal law, the federal law will prevail. Indeed, CMS states that its rule preempts state law and employers are expected to follow it in the event of any conflict.

There is presently a challenge by the State of Florida to the CMS Rule pending in Pensacola, in the Northern District of Florida. The State’s initial injunction request was denied on November 20, 2021. However, it remains to be seen whether that injunction request will be appealed, or whether there will be challenges by CMS to Florida’s state law. In the interim, facilities subject to CMS rule must weigh the competing risks of failing to comply with either the Florida or federal rule. Florida employers subject to the CMS rule should work with their legal counsel for guidance as to how to navigate this quandary.

 

Final Note

In addition, all healthcare providers should remember they remain subject to the Emergency Temporary Standard (“ETS”) for healthcare published on June 21, 2021, by the Occupational Safety and Health Administration (“OSHA”).

Although OSHA’s ETS issued on November 4, 2021, which is relevant to employers of 100 or more employees and mandating vaccination has presently been stayed, OSHA has announced suspension of enforcement efforts. As a result, the June 21, 2021, ETS for healthcare has not been stayed. That ETS does not mandate vaccination but does put in place specific requirements with respect to removing COVID-19 positive employees from the workplace, paying for time out of work, paying for time off to receive vaccination, and numerous requirements with respect to physical safety measure and policies. A link to the requirements, FAQs and some sample policies can be found here.