CMS Ends COVID-19 Vaccine Mandate For Medicare-Certified Healthcare Settings
On June 5, 2023, CMS published a final rule that will end its current COVID-19 vaccine mandate for staff in certain Medicare-certified healthcare settings. In commentary to the final rule, CMS notes that the COVID-19 risks it intended to target using the vaccine mandate have largely been addressed, and it is now appropriate to realign its approach with that used for other infectious diseases such as influenza. Although the final rule officially takes effect August 4, 2023, CMS announced that it will exercise enforcement discretion and will no longer enforce the vaccine mandate starting June 5, 2023.
In addition to terminating the COVID-19 vaccine mandate, the June 5 final rule does the following:
(a) removes expired language regarding COVID testing of residents and staff in long-term care (“LTC”) facilities;
(b) finalizes the requirements for LTC facilities and intermediate care facilities for individuals with intellectual disabilities (“ICF-IID”) to provide education about COVID-19 vaccine to residents, clients, and staff; and
(c) finalizes requirements for LTC facilities and ICF-IID to provide COVID-19 vaccines to residents, clients, and staff.
In commentary to the final rule, CMS notes that it will encourage ongoing COVID-19 mitigation measures through its quality reporting and value-based incentive programs, with details to be announced in the near future. CMS also notes that removal of the Medicare-based vaccine mandate does not preclude healthcare organizations from implementing their own COVID-19 vaccination requirements in compliance with applicable laws.
In preparation for the August 4, 2023, effective date of the finalized “educate and offer” requirements, we recommend LTC facilities and ICF-IID review their COVID-19 policies and procedures to confirm that they continue to comply with the finalized requirements.
If you have any questions about the information in this alert, please contact, Kathleen Reed (kreed@dykema.com or 734-214-7661), Eric Klein (eklein@dykema.com or 248-203-0891), or your Dykema relationship attorney.
