Covid-19 Vaccination Mandate Soon to End

The federal mandate will end, but employers may still require vaccination.

Providers wondering exactly when they can say goodbye to the Medicare and Medicaid COVID-19 vaccination requirement for employees finally have a concrete date — but it may be further away than they’d like.

The Beginning of the End

On May 1, the Biden administration revealed that it was ending the vaccination requirement and said the Department of Health and Human Services “will start the process to end their vaccination requirements for … [Centers for Medicare & Medicaid Services (CMS)]-certified healthcare facilities. In the coming days, further details related to ending these requirements will be provided.”

In a survey memo dated that same day, CMS noted that it would “soon end the requirement that covered providers and suppliers establish policies and procedures for staff vaccination” and would “share more details regarding ending this requirement at the anticipated end of the public health emergency (PHE).”

The PHE’s end came and went on May 11, however, with no further details released, leaving providers to wonder whether going ahead and ending their policies related to COVID-19 vaccination would result in survey citations.

“While the vaccine mandate ended … on May 11, 2023, the vaccination requirement did not end for CMS-certified healthcare facilities,” noted attorneys Christopher Begin, Timothy Cahill, and Ashley Durner with law firm Dinsmore & Shohl in Ohio. CMS-certified healthcare providers left in the “waiting room … should maintain their policies and procedures for COVID-19 vaccination until further notice,” they advised after the PHE ended.

Now CMS has issued a final rule on the matter. The rule rescinds the vaccination requirement and most related policies for home health, hospice, and other providers, says the regulation published in the June 5 Federal Register.

Sorting Out the Details

The final rule released on May 31 “finalizes requirements for [long-term care] facilities to provide education about COVID-19 vaccines and to offer COVID-19 vaccines to residents, clients, and staff.” That “may impact hospice patients residing in these facilities,” points out the National Association for Home Care & Hospice’s Katie Wehri on the trade group’s listserv.

The rule is effective on Aug. 4, 60 days from its June 5 publication. “As conditions and circumstances of the COVID-19 PHE have evolved, so too has CMS’ response,” the agency says in the rule. “At this point in time, we believe that the risks targeted by the staff vaccination [rule] have been largely addressed, so we are now aligning our approach with those for other infectious diseases, specifically influenza. Accordingly, CMS intends to encourage ongoing COVID-19 vaccination through its quality reporting and value-based incentive programs in the near future.”

CMS plans to move ahead with the COVID-19 vaccination quality measures (QMs) it included in last year’s Measures Under Consideration (MUC) list, including QMs that quantify the number of patients and staff that are vaccinated.

The difference: “The use of such quality measures may ultimately affect ratings on the various ‘Compare’ … websites and may affect payment in various ‘value-based purchasing’ programs, but would not affect the ability of the provider or supplier to participate in the Medicare program,” according to the rule.

For home health, however, CMS proposed only the “COVID-19 Vaccine: Percent of Patients Who Are Up to Date” measure on the MUC list, not the staff measure. And CMS didn’t list either measure for hospice.

Of course, that may change in the future.