Following the May 1 White House announcement that the federal government would wind down certain remaining COVID-19 vaccination requirements, on May 31, 2023, the Centers for Medicare & Medicaid Services (CMS) issued a final rule formally rescinding the Omnibus COVID-19 Health Care Staff Vaccination interim final rule (IFR). With this withdrawal, various Medicare- and Medicaid-certified healthcare facility types are no longer required to enforce COVID-19 vaccination among staff and contractors. However, CMS noted that it will now use quality reporting and value-based measures and incentives to encourage entities to keep workers “up to date” on COVID-19 vaccinations. This final rule is expected to be published on June 5, 2023, and will become effective 60 days after the date of publication in the Federal Register; however, CMS explicitly noted that it will use enforcement discretion prior to the 60-day effective date and will no longer enforce staff vaccination provisions.
The IFR was originally published in the Federal Register on November 5, 2021, and required most Medicare- and Medicaid-certified providers and suppliers to implement policies and procedures to ensure staff were vaccinated against COVID-19 with limited exceptions. More detail on the contents of the Omnibus COVID-19 Health Care Staff Vaccination can be found here and here. CMS’s final rule removes this requirement, thereby removing COVID-19 vaccination policies and procedures for healthcare staff under the Conditions of Participation (CoPs), Conditions for Coverage (CfCs) and requirements.
Despite its withdrawal of the IFR, CMS will continue to encourage ongoing COVID-19 vaccination through quality-related measures, such as quality reporting and value-based incentive programs. For example, the US Department of Health and Human Services (HHS) will continue to consider COVID-19 vaccinations as a quality measure that may subsequently affect ratings and payment in various “value-based purchasing” programs, including the Merit-Based Incentive Payment System (MIPS) and inpatient hospital quality reporting programs. The final rule notes that performance on these measures can be publicly posted via existing quality reporting mechanisms, such as the Hospital Compare website.
CMS commented that its rescission of the IFR reflects its belief that “the risks targeted by the staff vaccination IFR have been largely addressed” and demonstrates a broader pivot toward vaccines for other infectious diseases, specifically influenza. The final rule also acknowledges staffing challenges created by the vaccine mandates but continues to emphasize the importance and effectiveness of COVID-19 vaccines. Moreover, the rule states that withdrawal of the vaccination requirements from the CoPs and CfCs does not prohibit facilities from establishing policies that require staff vaccinations. CMS encourages healthcare employers to “maintain evidence-based policies regarding staff vaccination for COVID-19 and other communicable diseases for which vaccination is available and recommended.”
The final rule also makes permanent policies requiring long-term care providers to educate and offer COVID-19 vaccines to staff and residents. Accordingly, long-term care facilities must continue to provide information and offer a COVID-19 vaccine, as well as complete the appropriate documentation for these activities. The rule, however, removes expired COVID-19 testing requirements for those populations.
For more information contact: Sandra M. DiVarco (McDermott Will & Emery – Partner) or Casey Li (McDermott Will & Emery – Associate).
