On May 31, 2023, the Centers for Medicare & Medicaid Services (CMS) released its latest final rule repealing the November 5, 2021, COVID-19 vaccination mandate impacting 13 million staff at 76,000 CMS-regulated provider organizations. The rule also finalizes “educate and offer” requirements for long-term care (LTC) facilities and Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) and deletes now-expired regulatory provisions regarding LTC facility testing requirements.
Why is CMS taking this action now?
According to CMS, the agency is now transitioning “to make COVID-19 policies more like those for other communicable diseases, reflect[ing] the ongoing evolution of epidemiological and clinical circumstances….” CMS states this action “does not imply that our issuance of the staff vaccination [mandate] was invalid or that CMS could not take such steps again in the future, if circumstances warrant.” The agency maintains the mandate has “not adversely affected health care staffing” based on studies and analyses of facility payroll data postdating the mandate.
CMS “intend[s] to continue to support and encourage COVID-19 vaccination through [its] quality reporting and value-based incentive programs.” CMS previously provided notice of its intent to include the COVID-19 Vaccination Coverage Among Healthcare Personnel measure (percentage of healthcare personnel who are considered up-to-date on their COVID-19 vaccinations per the CDC’s latest guidance) in its facility-based quality reporting and value-based purchasing programs.
What is the effective date of the repeal?
Federal rules generally become effective 60 days after publication. However, given CMS’ determination “that the emergency circumstances which occasioned these vaccination provisions no longer exist…and considering the lower policy priority of enforcement within the remaining time,” CMS will not enforce the mandate after May 31, 2023. CMS did not address whether it will pursue enforcement action relating to non-compliance prior to that date.
Are providers now prohibited from requiring staff to be vaccinated?
According to CMS, the repeal of the mandate “should not be construed as a diminution of CMS support for vaccination or for facilities to require staff vaccination. Moreover, [the repeal] does not prohibit facilities from requiring staff vaccinations, and we encourage health care employers to maintain evidence-based policies regarding staff vaccination for COVID-19 and other communicable diseases for which vaccination is available and recommended. Health systems and health care employers may continue to require that workers stay up to date on COVID-19 vaccinations, consistent with other Federal, State, and local laws.”
Several states have imposed restrictions on vaccine mandates. The National Academy for State Health Policy maintains a tracker summarizing these state laws. Also, any employer mandate must comply with applicable federal non-discrimination and civil rights laws and protections, including providing reasonable accommodations to individuals with disabilities or sincerely held religious beliefs, practices, or observations that conflict with the vaccination requirement. Information regarding these requirements is available here.
Are LTC facilities still required to test staff and residents for COVID-19?
Beginning in September 2020, CMS required LTC facilities to test their staff and residents for COVID-19 consistent with sub-regulatory guidance. This requirement, however, expired at the end of the COVID-19 public health emergency. In the May 31, 2023, final rule, CMS is deleting all references to the testing requirement from federal regulations.
What is the status of the “educate and offer” requirements?
On May 13, 2021, CMS revised its regulations for LTC facilities and ICFs-IID on a temporary basis to require these facilities to provide COVID-19 vaccination education to residents, clients, and staff and to offer COVID-19 vaccines to these populations.
The “educate and offer” rule requires facilities to document in each resident’s medical record that the resident or resident representative was provided education regarding the benefits and potential risks associated with COVID-19 vaccine; each dose of COVID-19 vaccine administered to the resident; or if the resident did not receive a COVID-19 vaccine due to medical contraindications or refusal. For staff members, facilities must maintain documentation that staff were provided education regarding the benefits and potential risks associated with COVID-19 vaccines; were offered a COVID-19 vaccine or information on obtaining a COVID-19 vaccine; and the COVID-19 vaccine status of staff and related information as indicated by the National Healthcare Safety Network. In the May 31, 2023, final rule, CMS is now making these “educate and offer” requirements permanent for LTC facilities and ICFs-IID.
For more information regarding the impact of the end of the COVID-19 public health emergency, please visit PYA’s End-of-PHE Resources page or contact one of our executive contacts below at (800) 270-9629 or the e-mails below.