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CMS Suspends Enforcement of Health Care Personnel COVID-19 Vaccination Mandate

In a final rule officially published on June 5th, the Centers for Medicare and Medicaid Services (CMS) removed the health care personnel COVID-19 vaccination mandate. CMS announced that it would suspend enforcement of the vaccination mandate pending the final rule's effective date in 60 days, following a similar decision by New York in late May. Accordingly, neither New York State nor the federal government will be enforcing a requirement that health care personnel be vaccinated against COVID-19.

Although staff vaccination against COVID-19 will no longer be enforced by CMS or the State, CMS encourages health care employers to maintain evidence-based policies regarding staff vaccination for COVID-19 and other communicable diseases for which vaccination is recommended. Providers have the flexibility to impose a vaccination requirement on their employees, subject to collective bargaining agreements and state and federal laws governing discrimination on the basis of religious belief or disability.

Nursing homes and assisted living facilities are reminded of their obligations to inform staff and residents about the COVID-19 vaccine and provide access to vaccination. CMS's recent publication finalizes regulations requiring nursing homes to educate residents and staff on COVID-19 vaccination and to offer or assist with accessing the vaccination for those who accept. Similarly, state regulations require both nursing homes and assisted living facilities to assist residents and staff with accessing COVID-19 vaccination.

CMS noted in its preamble to the recent final rule that it intends to encourage ongoing COVID-19 vaccination through its quality reporting and value-based incentive programs. For nursing homes, this would include quality measures under the Quality Reporting Program (QRP), such as the COVID-19 Vaccination Coverage among Health Care Personnel measure and the proposed Percent of Residents Up to Date with COVID-19 Vaccines. Currently, QRP measures are only reported on Nursing Home Compare and do not affect reimbursement. However, the State's 2022 Nursing Home Quality Initiative (NHQI) will include the Percent of Residents Up to Date with COVID-19 Vaccines as a factor that determines a facility's NHQI distribution.

The recent CMS final rule also removed expired regulations governing testing for COVID-19 in nursing homes. In the preamble to the rule, CMS reminded nursing homes and other providers that they are still expected to take appropriate steps to prevent and control the transmission of infection. Centers for Disease Control and Prevention (CDC) guidance provides a national standard for those mitigation measures for COVID-19 and includes recommendations for COVID-19 testing by health care providers generally and by nursing homes.

Contact: Karen Lipson, klipson@leadingageny.org