Skip to Content

CMS Releases Final Rule Ending COVID-19 Vaccinations and More

on Friday, 2 June 2023 in Health Law Alert: Erin E. Busch, Editor

On May 11, 2023, the COVID-19 public health emergency (PHE) expired after nearly three and a half years. As anticipated, the Centers for Medicare & Medicaid Services (CMS) released a final rule to effectuate necessary changes to a series of regulatory requirements introduced in response to the PHE. The most attention-grabbing change is the elimination of the controversial staff COVID-19 vaccination policy requirement.  In addition, the final rule eliminated resident and staff testing requirements for long-term care facilities (LTCs) and formalized the continuation of COVID-19 quality measures and the continuation of “educate and offer” requirements for LTCs and intermediate care facilities for individuals with intellectual disabilities (ICFs-IID). This article briefly discusses each of these important provisions.

Elimination of the COVID-19 Vaccine Policy

During the COVID pandemic, CMS added a vaccine requirement to the Medicare conditions of participation (CoPs). This revision to the CoPs required that nearly all Medicare- and Medicaid-certified providers and suppliers adopt policies and procedures requiring health care workers and other staff to complete a full COVID-19 vaccination series unless they qualified for one of a few exceptions. This final rule eliminates the vaccination requirement as a condition of participation.  Although the requirement cannot be removed from the CoPs until 60 days after the final rule is published in the Federal Register, CMS announced they will immediately stop enforcing the requirement.

Elimination of LTC Testing Requirements

The end of the PHE also required the elimination of previously imposed requirements that residents and staff of LTCs must follow a COVID-19 testing schedule. This mandate had subjected residents and staff to frequent COVID-19 tests, with the goal of detecting individuals carrying the virus and prevent the spread of COVID-19 through the vulnerable populations housed in LTCs. Through the recently published final rule, CMS removed the expired language requiring COVID testing for those individuals.

Continuation of Quality Measures Related to COVID-19

Each year, HHS adopts various quality and efficiency measures to quantify a Medicare provider or suppliers’ ability to provide quality health care. CMS uses these measures to achieve quality improvement initiatives and in public reporting. During the PHE, quality measures were introduced that assessed the number of vaccinated employees in a health care facility for reporting and quality improvement. The final rule announced that CMS will continue to use the previously established quality measures to motivate continued COVID-19 vaccination. These quality measures do not affect a provider’s ability to participate in Medicare, but can still affect quality ratings and payment in “value-based purchasing” programs.

Continuation of COVID-19 “Educate and Offer” Requirements for LTCs and IFCs-IID

CMS also required that residents, their companions and staff of LTCs and IFCs-IID receive education about and the offer to receive COVID-19 vaccinations during the PHE. Residents of LTCs and IFCs-IID are often vulnerable to infectious diseases due to their close proximity to others within the facilities and existing comorbidities. Because of this vulnerability, they have an increased risk of infection and poorer outcomes when exposed to viruses like COVID-19. CMS announced in the final rule that they will continue to require the “educate and offer” requirements in the same fashion as is required for other infectious diseases.

The final rule will be published in the Federal Register on June 5, 2023, and is effective 60 days thereafter. 

Vickie B. Ahlers
Courtney E. Camenzind, Summer Associate


1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500