May 17, 2023

CMS Announces End to Vaccine Mandate, Provides Guidance for End of PHE

BY Jodi Eyigor

Centers for Medicare & Medicaid Services (CMS) released memo QSO-23-13-ALL on May 1 to provide guidance on the end of the public health emergency (PHE). CMS outlined how COVID-era operations, including interim final rules and regulatory waivers, will be impacted by the end of the PHE and announced two key regulatory changes impacting nursing homes.

COVID-19 Staff Vaccination Mandate Will End

CMS has announced they will end the COVID-19 vaccination mandate for CMS-certified settings. This interim final rule, finalized in November 2021, was expected to remain in effect until November 2024, but will now end early. CMS has stated that more details will be forthcoming and maintains that vaccination is the strongest protection against illness, reminding providers to stay up to date with COVID-19 vaccination.

It is important to note that while the vaccine mandate will end, requirements for educating on and offering the COVID-19 vaccine will not. Nursing homes will continue to be required to educate all residents/representatives and staff on COVID-19 vaccination, including any changes such as those announced by the Food & Drug Administration (FDA) and Centers for Disease Control & Prevention (CDC) in April, and offering residents and staff the vaccine or assisting with accessing the vaccine if the vaccine cannot be provided on site. Also remember the policy of “strengthened enhanced enforcement” announced by CMS at the end of March that subjects nursing homes to enhanced enforcement should the nursing home be found noncompliant at both F880 Infection Control and F887 COVID-19 Immunization.

“A continuation of the vaccine mandate is no longer needed. Our country is in a very different place now,” said Katie Smith Sloan, president and CEO of LeadingAge, quoted in a May 1 Washington Post article. “And, whether or not a mandate is in place, there is no question that COVID-19 vaccines are a safe and effective defense against the virus, which disproportionately impacts older adults and the people who care for them.”

Requirements for Resident/Representative Notification Will End

An interim final rule in May 2020 required nursing homes to report COVID-19 data to CDC through the National Healthcare Safety Network (NHSN) system and to notify residents/representatives by 5pm the next calendar day following either a new confirmed case or a cluster of 3 residents and staff showing symptoms consistent with COVID-19. The rule also required nursing homes to provide weekly updates to residents and representatives on cumulative COVID cases. This rule was extended through December 2024 in the CY 2022 Home Health PPS rule.

CMS has announced that NHSN reporting will continue through December 2024 as finalized, but enforcement discretion will be exercised for requirements at 483.80(g)(3) regarding resident and family notifications. Specifically, nursing homes will no longer be expected to notify residents and families of new and cumulative cases. However, nursing homes should continue following CDC recommendations which include, at this time, counseling visitors about potential for exposure if visiting during outbreak and the infection prevention and control practices in use at the nursing home.

Emergency Preparedness Requirements Will Resume as Written

In September 2020, CMS released memo QSO-20-41-ALL reminding providers of the actual emergency exemption to emergency preparedness exercise requirements. Throughout the PHE, providers were permitted to utilize this exemption based on the COVID-19 PHE to be exempt from the next required full-scale exercise in their annual cycle following activation of their emergency plan. Clarifications to the memo in 2021 and 2022 confirmed that providers who had reactivated their emergency plans or who continued to operate under emergency plans would continue to be exempt from the full-scale exercise requirement in each annual cycle. Providers were still required to complete an exercise of choice in each annual cycle.

In the updated guidance released on May 1, CMS has announced that the emergency exemption no longer applies with the termination of the PHE and providers must resume compliance with emergency preparedness requirements. Inpatient providers, including nursing homes, are expected to complete both a full-scale exercise and an exercise of choice during the 2023 annual cycle.

Impacts on Regulatory Waivers, Interim Final Rules, and Survey Policies

CMS has confirmed that 1135 and 1812(f) waivers will end with the termination of the PHE as previously announced. Providers must resume compliance with regulatory requirements as written. Individuals working as nurse aides will have 4 months from the end of the applicable waiver (on or before May 11) to meet requirements to continue working within the nursing home.

Interim final rules, with the exception of vaccination and COVID notifications, will continue as previously announced. Requirements for educating on and offering COVID-19 vaccination continue into May 2024. The COVID-19 testing rule will end with the PHE but nursing homes must continue to conduct COVID-19 testing according to CDC recommendations as an accepted national standard under F880 Infection Control requirements.

State Survey Agencies will be required to complete focused infection control surveys in at least 20% of nursing homes in the state in FY 2023, but will have no specific focused infection control survey quotas in FY 2024. The focused infection control survey pathway will continue to be available for use as needed, such as in relation to a complaint.

LeadingAge continues to provide members with resources for compliance with Requirements of Participation and COVID-19 recommendations.

Read LeadingAge’s press statement, “Reax: CMS Ends COVID-19 Staff Vaccination Requirement,” and all releases, in our Press Room.