On May 31, 2023, the Centers for Medicare and Medicaid Services (CMS) posted the public inspection version of a final rule titled, Medicare and Medicaid Programs; Policy and Regulatory Changes to the Omnibus COVID-19 Health Care Staff Vaccination Requirements; Additional Policy and Regulatory Changes to the Requirements for Long-Term Care (LTC) Facilities and Intermediate Care Facilities for Individuals With Intellectual Disabilities (ICFs-IID) to Provide COVID-19 Vaccine Education and Offer Vaccinations to Residents, Clients, and Staff; Policy and Regulatory Changes to the Long Term Care Facility COVID-19 Testing Requirements. The final rule was formally posted to the Federal Register on June 5, 2023.
CMS notes that “the central consideration in [their] evaluation and determination is helping to protect the health and safety of individuals that receive care and services from Medicare- and Medicaid-certified providers and suppliers” (Section I(A), para. 11). In particular, this rule addresses updates to requirements set forth in the following interim final rules with comment periods (IFCs) that were issued during the COVID-19 Public Health Emergency (PHE):
- Health care staff vaccination requirements (November 5, 2021 “staff vaccination” IFC)
- Education and vaccine offering requirements for LTC Facilities and ICFs-IID (May 13, 2021 COVID-19 vaccine “educate and offer” IFC)
- COVID-19 testing requirements for LTC facilities (September 2, 2020 “LTC facility testing” IFC) Specifically, as of the final rule effective date of August 4, 2023, unless otherwise required by a state government or by employer policy:
- Policies and processes for mandatory COVID-19 vaccination for health care staff will no longer be required under the Medicare and Medicaid Conditions of Participation, Conditions for Coverage, and Requirements for Participation for 15 categories of health care providers, including long term care providers (Skilled Nursing Facilities (SNFs) and Nursing Facilities (NF)), home health agencies, Programs of All-Inclusive Care for the Elderly (PACE) organizations, and rehabilitation agencies.
- CMS has indicated that there will be no enforcement of the staff vaccination provisions between June 5, 2023 and August 4, 2023 (Section I(G), para. 1).
- Additionally, CMS noted that it “intends in the near future to encourage ongoing COVID-19 vaccination through other mechanisms, including its quality reporting and value-based incentive programs” (Section IV(A), para. 1).
- In alignment with existing regulations for other infectious diseases, such as influenza and pneumococcal disease, CMS has made permanent the requirements for LTC and ICFs-IID facilities to provide education about COVID-19 vaccines (including benefits and risks) and to offer COVID-19 vaccines to residents, clients, and staff. LTC Facilities and ICFs-IID facilities are also required to continue to document:
- For residents, that education was provided to the resident or resident representative, as well as each dose of COVID–19 vaccine administered to the resident; or, if the resident did not receive a COVID–19 vaccine due to medical contraindications or refusal
- For staff, that education was provided, that the COVID–19 vaccine or information on obtaining a COVID–19 vaccine was offered, and the COVID–19 vaccine status of staff and related information as indicated by the Center for Disease Control and Prevention’s (CDC's) National Healthcare Safety Network (NHSN)
Effective June 5, 2023 (see Section 1(D), para. 1), unless otherwise required by a state government or by employer policy:
- The staff and patient COVID-19 testing requirements for LTC facilities issued in September 2020 have been discontinued. (Note: CMS indicates in the final rule that “Under this requirement “staff” are considered any individuals employed by the facility, any individuals that have arrangements to provide services for the facility, and any individuals volunteering at the facility” (Section II(C), para. 1).)
- It is expected that LTC facilities will continue infection control measures, which may include testing protocols, in order to mitigate the spread of COVID–19 and other communicable respiratory diseases.
If you have questions or need additional information, please contact the Powerback Rehabilitation and Powerback Respiratory email inquiry system at askregulatory@powerbackrehab.com.
