On Monday, October 3, 2022, the Supreme Court rejected a request brought by 10 states led by Missouri to hear a renewed challenge to the Centers for Medicare & Medicaid Services (CMS) COVID-19 vaccination mandate for healthcare workers. The mandate applies only to Medicare and Medicaid-certified facilities that are subject to CMS’s health and safety regulations – and thus does not apply to assisted living facilities.

It should be noted that the Court’s decision does not in any way impact the scope of CMS’s COVID-19 vaccination mandate. As such, assisted living facilities, including those providing Home and Community-based Services (HCBS), remain excluded from the scope of CMS’s mandate. As a reminder, CMS has clarified via guidance that its COVID-19 vaccination mandate does not apply to assisted living, noting that it “does not have regulatory authority over care settings such as assisted living….” CMS also clarified that the mandate would also not apply to assisted living facilities that provide HCBS under state Medicaid programs, because “CMS’s health and safety regulations do not cover” HCBS providers.

Many assisted living providers would have been covered by the Occupational Safety and Health Administration’s (OSHA’s) vaccination-and-testing rule for large businesses, originally issued in November 2021. However, in January of this year, the Supreme Court blocked OSHA from implementing the rule, and OSHA subsequently withdrew the rule as an enforceable standard.