Page 13 - COVID Executive Order Survival Guide Brochure

Are Health Care Organizations Covered Contractors?
There is a lot about this question that needs unpacking because the term “health care organization” is such a broad term. Let’s consider two of the less complex flavors of health care contracting first.
• Hospitals and other health care organizations that contract with the federal Government to provide products or services – e.g., a hospital serving military families under the US Family Health Plan, a hospital conducting medical research for HHS, or a Third Party Administrator of a VA community care program) – are almost certainly covered by the EO.
• University medical facilities also likely are covered as most engage in some manner of federal research. If the research is funded by a contract (rather than a grant), they likely fall within the scope of the rule.
The more complicated question is whether health care organizations might be covered by the EO merely by virtue of their participation in federal programs like the Federal Employees Health Benefits Program (“FEHBP”), Medicare Advantage, and Medicaid Managed Care.
FEHBP carriers hold federal contracts for services with the U.S. Office of Personnel Management, so they likely will be receiving the -99 clause. Medicare Advantage Organizations (“MAO”) also hold federal contracts, but with the Centers for Medicare & Medicaid Services (“CMS”), to provide claims administration services, among other services, which makes it highly likely they will be receiving the clause, too. CMS contracts, however, are a unique breed of federal contract and operate outside the reach of the FAR. CMS is not required to apply the FAR to MAOs where doing so would “be inconsistent with the furtherance of the purpose of” the Medicare statute. So it’s possible CMS elects not to include the -99 clause in its MAO contracts. Medicaid Managed Care Organization (“MCO”) contracts, while regulated by the Federal Government, actually are with the states. So they would not be covered by the EO unless a state views itself as a federal contractor and flows down the clause.
Practically, it may not matter much whether EO 14042 applies to many health care organizations, because CMS issued an interim final rule mandating that all staff in Medicare or Medicaid-certified facilities receive their final vaccine dose by January 4, 2022 (the same deadline as the federal contractor mandate). The CMS rule is nearly as broad as EO 14042 as well, requiring all staff providing “any care, treatment, or other services for the facility and/or its patients” to get the vaccine—even if the staff work remotely but occasionally encounter fellow staff who will enter a covered health care facility. The CMS rule applies to staff retained under contract, volunteers, or any other arrangement at hospitals, hospices, residential care facilities, outpatient rehab facilities, end stage renal disease facilities, and other facilities. Importantly, the CMS rule does not reach health plans that do not function as providers, but explicitly notes that some health care organizations may be covered under other federal mandates like EO 14042 or the OSHA ETS. Further, the CMS rule and EO 14042 are not mutually exclusive: organizations that fall under the CMS rule should apply that first, but must then evaluate whether EO 14042 also applies to employees the CMS rule may not reach.
Whether employees are health care facility staff or administrative staff managing an MCO’s subcontracts with facilities, providers, and other services contractors, it seems likely that vaccination requirements will eventually reach all of them.
www.sheppardmullin.com
EXECUTIVE ORDER 14042 SURVIVAL GUIDE | PAGE 13