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Legal Update Article

CMS COVID-19 Vaccination, Testing Requirements to Formally End This Summer

The Biden-Harris Administration announced on May 1, 2023, that the Centers for Medicare and Medicaid Services (CMS) would soon be eliminating COVID-19 vaccination requirements for healthcare providers. On May 31, 2023, CMS issued the awaited Final Rule.

The Final Rule contains two key changes:

  • Removes testing requirements issued in the September 2, 2020, Interim Final Rule (IFR); and
  • Removes vaccination requirements for healthcare staff as defined in the IFR.

The Final Rule includes ongoing education initiatives, including requiring certain covered providers to provide education around COVID-19 vaccination and offer COVID-19 vaccinations.

The Final Rule also provides for ongoing quality reporting obligations. In its introductory comments to the Final Rule, CMS notes that it intends to align its approach to COVID-19 vaccination for healthcare staff with its approach for other infectious diseases. CMS specifically referenced its approach to influenza, emphasizing that it will “encourage ongoing COVID-19 vaccination through its quality reporting and value-based incentive programs in the near future.”

Similarly, CMS states these quality measures may ultimately affect ratings on various “Compare” websites and payment in various value-based purchasing programs, but that will not affect eligibility to participate in the Medicare program.

The Final Rule is expected to be effective on or about August 4, 2023 (60 days after June 5, 2023, its publication in the Federal Register). While the Final Rule is not yet effective, CMS said it does not intend to enforce staff vaccination requirements before the effective date of the Final Rule.

In addition to preparing for compliance with the Final Rule, affected providers should review state or local requirements that may impose additional testing or vaccination requirements, along with their policies and practices.

Please contact a Jackson Lewis attorney with questions.

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