CMS announces new COVID-19 vaccination requirements for health care facilities under Medicare and Medicaid programs

Key Takeaways

On November 4, the U.S. Centers for Medicare & Medicaid Services (CMS) announced COVID-19 vaccination requirements for eligible staff at health care facilities participating in Medicare and Medicaid programs. The requirements were posted in the Federal Register as an Interim Final Rule (IFR) with a 60-day public comment period, with requirements within the rule effective immediately.

Below is a summary of the eligibility, requirements and compliance deadlines under the IFR:

ELIGIBILITY

The vaccination requirements apply to the following providers and facilities who are regulated under the CMS Conditions of Participation: Ambulatory surgical centers, hospices, programs of all-inclusive care for the elderly, hospitals, long term care facilities, psychiatric residential treatment facilities, intermediate care facilities for individuals with intellectual disabilities, home health agencies, comprehensive outpatient rehabilitation facilities, critical access hospitals, clinics (rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services), community mental health centers, home infusion therapy suppliers, rural health clinics/federally qualified health centers and end-stage renal disease facilities.

Assisted living facilities, group homes, home and community-services (HCBS) and physician’s offices are excluded from this requirement, as are religious nonmedical health care institutions, organ procurement organizations and portable x-ray suppliers.

OVERVIEW OF REQUIREMENTS

Eligible facilities and providers are mandated to meet the following requirements under the IFR:

1. Develop a process/plan for vaccinating all eligible staff
2. Develop a process/ plan for providing exemptions and accommodations for those who are exempt
3. Develop  a process/plan for tracking and documenting staff vaccinations

These requirements apply to all eligible staff – both current and new – working in the facility, regardless of their clinical responsibility or patient contact. Of note, there is no testing option for unvaccinated staff under this requirement. However, the regulation also allows exemptions centered on medical conditions or religious beliefs, observances, or practices, which facilities must adhere to and develop a policy to meet federal guidance. Accommodations for exempt employees include but are not limited to testing, physical distancing and source control.

DEADLINES FOR COMPLIANCE

Facilities and providers will need to create a policy to determine if eligible staff have taken the first step to meet COVID-19 vaccine guidelines by the first compliance deadline of receiving the first dose by December 5, 2021. Further, all eligible staff will need to be fully vaccinated by January 4, 2022, to provide care, treatment, or other health care services. The agency defines fully vaccinated as two or more weeks since the completion of a primary vaccination series for COVID-19 (one single-dose vaccine or the completion of a two-dose vaccine).

ENFORCEMENT

CMS will work directly with State Survey Agencies to ensure health care settings are meeting the three requirements mentioned above. Facilities and providers out of compliance will be cited and provided an opportunity to return to compliance before enforcement remedies such as civil monetary penalties, denial of payment and termination from the Medicare and Medicaid program are employed.

For more information on this and other federal COVID-19 mandates please see NACo’s Employer COVID-19 Vaccine Mandate FAQ.

ADDITIONAL RESOURCES

• CMS Omnibus Health Care Staff Vaccination Interim Final Rule FAQ
• NACo Blog: OSHA releases new rule on COVID-19 vaccination and testing
• NACo’s Employer COVID-19 Vaccine Mandate FAQ