CLIENT ALERT
Kaitlin Murphy, Esq.
June 6, 2023
Effective August 4, 2023, the Centers for Medicare and Medicaid Services (“CMS”) no longer will require COVID-19 vaccination for staff of most health care entities. On June 5, 2023, CMS published a final rule entitled “Policy and Regulatory Changes to the Omnibus COVID-19 Health Care Staff Vaccination Requirements” (“June 2023 Rule”). This new rule withdraws CMS’ COVID-19 staff vaccination requirements published on November 5, 2021 in the rule entitled “Omnibus COVID-19 Health Care Staff Vaccination” (“November 2021 Rule”).
The June 2023 Rule now supplants the November 2021 Rule in significant ways. The November 2021 Rule mandated most Medicare and Medicaid-certified providers and suppliers participating in the Medicare or Medicaid programs to require full vaccination for COVID-19 of any staff who interacted with other staff, patients, residents, clients or PACE program participants, in any location, subject to a few discrete exceptions.
In reversing its prior rule, the June 2023 Rule provides “[W]e are withdrawing from the CFR the requirements regarding COVID-19 vaccination of health care staff as established under the [November 2021 Rule].” CMS’ lifting of the vaccination requirement applies to the following providers and suppliers:
- Ambulatory Surgical Centers (§ 416.51(c)),
- Hospices (§ 418.60(d)),
- Psychiatric residential treatment facilities (§ 441.151(c)),
- Programs of All-Inclusive Care for the Elderly (§ 460.74(d)),
- Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities) (§ 482.42(g)),
- Long Term Care (“LTC”) Facilities, including Skilled Nursing Facilities and Nursing Facilities, generally referred to as nursing homes (§ 483.80(i)),
- Intermediate Care Facilities for Individuals with Intellectual Disabilities (§ 483.430(f)),
- Home Health Agencies (§ 484.70(d)),
- Comprehensive Outpatient Rehabilitation Facilities (§§ 485.70(n)),
- Critical Access Hospitals (§ 485.640(f)),
- Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (§ 485.725(f)),
- Community Mental Health Centers (§ 485.904(c)),
- Home Infusion Therapy suppliers (§ 486.525(c)),
- Rural Health Clinics/Federally Qualified Health Centers (§ 491.8(d)), and
- End-Stage Renal Disease Facilities (§ 494.30(b)).
Facilities can still require their staffs to get or remain vaccinated. The June 2023 Rule’s withdrawal of staff vaccination requirements from the Conditions of Participation, Conditions for Coverage, and requirements for applicable entities, “does not prohibit facilities from requiring staff vaccinations, and [CMS] encourage[s] 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.” Although CMS will no longer require COVID-19 vaccination for staff, some States may require COVID-19 vaccination of health care staff. All applicable entities, therefore, should review staff vaccination requirements unique to their State.
Note that while the staff vaccination requirements will be lifted, certain facilities accepting Medicare and Medicaid reimbursement must continue to provide education about COVID-19 vaccines and to offer COVID-19 vaccinations to residents, clients, and staff. For example, the June 2023 Rule finalizes the “infection control requirements” at §§§ 483.80(d), 483.430(f) and 483.460 requiring LTC facilities and Intermediate Care Facilities for Individuals with Intellectual disabilities to continue educating, offering the COVID-19 vaccine to applicable individuals, and maintaining all confirming documentation. CMS will publish finalized language regarding education requirements at a later date.
Because this rule was published on June 5, 2023, the staff vaccination requirements, technically, will remain in effect through August 4, 2023. However, the June 2023 Rule expressly provides that, “since facilities are no longer operating under PHE circumstances, and considering the lower policy priority of enforcement within the remaining time, we will not be enforcing the staff vaccination provisions.”
If you have any questions about this new CMS rule, please contact Kaitlin Murphy at (603) 627-8299 or at kmurphy@sheehan.com.