On May 31, 2023, the Centers for Medicare & Medicaid Services (“CMS”) released a Final Rule (the “Final Rule”) that withdraws the mandatory vaccination requirement for employees of CMS-certified healthcare facilities, which includes hospitals, critical access hospitals, long term care facilities, home health agencies, hospices, and ambulatory surgical centers.  The vaccination requirement was set forth in an Interim Final Rule dated November 5, 2021, which is available here.

The Final Rule will be effective 60 days after the official publication of the rule. However, CMS announced that it will not enforce the staff vaccination requirements starting with the release of the Final Rule (May 31, 2023) and continuing through the 60-day period leading up to the effective date of the Final Rule. In essence, the mandatory vaccine requirement for staff at CMS-certified healthcare facilities has now abated, although CMS stated that it intends to encourage vaccination through quality reporting and value-based incentive programs through guidance that will be published at some point in the future.

The Final Rule also addresses two issues that are specific to long-term care facilities. The first one is outlining the “educate and offer” requirements as they relate to COVID-19 vaccinations. Under the Final Rule, long-term care facilities must develop and implement policies and procedures to educate residents and staff about the risks, benefits, and potential side effects of the vaccine, as well as offer the vaccine when available. The second issue specific to long-term care facilities is the withdrawal of the testing requirements outlined in the Interim Final Rule published on September 2, 2020.

This Final Rule comes after the end of the public health emergency on May 11, 2023 that left many healthcare facilities confused about vaccine mandate requirements. Healthcare facilities must stay up to date on the ever-changing healthcare regulations related to the expiration of the COVID-19 public health emergency. If you have any questions about these issues, please reach out to your Dinsmore healthcare attorney.