Sun Sets on CMS Mandatory Vaccination Requirement for Affected Healthcare Entities

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After nearly three years of navigating the most widespread public health crisis since the 1918 influenza pandemic, the Centers for Medicare and Medicaid Services (“CMS”) has withdrawn its mandatory vaccination and testing requirements for employees of Medicare and Medicaid participating healthcare facilities. This decision, which was released in a final ruling on June 5, 2023, comes in response to the Biden administration’s May 11, 2023, declaration ending the COVID-19 national public health emergency. The rule provides extensive guidance on its plan to unwind its November 2021 interim final rule, and is scheduled to take effect on August 4, 2023.

What Does the Final Rule Cover?

The final rule includes key changes that revoke, and in certain cases, modify previously issued COVID-19 mandates. The rule first withdraws the November 2021 interim rule which required healthcare staff members, including all employees, volunteers, contractors, students, and trainees, to receive the COVID-19 vaccination. Although the rule does not become effective until August 4, 2023, the vaccination revocation provision is effective immediately. As such, healthcare employers previously covered under the mandate may repeal any vaccination requirement implemented in accordance with the CMS mandate. The CMS final rule makes clear that it will not enforce staff vaccination provisions during the interim period prior to the rule’s effective date.

In addition to retracting the vaccination requirement, the rule also revokes its September 2, 2020, interim rule, requiring long term care facilities to implement COVID-19 testing requirements. While CMS will no longer require testing as a mechanism to track and reduce the transmission of the COVID-19 virus, CMS plans to use quality reporting and value-based incentive programs to encourage healthcare entities to practice preventative measures.

Finally, and arguably most importantly, the final rule requires long-term care facilities to provide education about the COVID-19 vaccine, and to continue offering vaccinations to all residents, clients, and staff. In addition to educating on the risks and benefits of the vaccine, long-term care facilities must document and report all collected COVID-19 data to the Centers for Disease Control (“CDC”) National Healthcare Safety Network (“NHSN”) until December 31, 2024.

Key Takeaways for Healthcare Employers:

While the final rule repeals the previously mandated vaccine requirement, healthcare employers are still permitted to require vaccinations, subject to any state or local laws expressly indicating otherwise. Affected healthcare entities are encouraged to continue implementing appropriate safety protocols to reduce the spread of the COVID-19 virus, despite the August 4^th sunset provision. Healthcare providers planning to revoke any vaccination requirement should be sure to review all employment policies and any state or local requirements to ensure full compliance with the final rule.  Should you have any questions or need additional guidance, Maynard Nexsen’s Healthcare Practice Group stands ready to provide you with assistance at any time.