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November 05, 2021

Health Law Weekly

CMS Issues Emergency Rule on COVID-19 Vaccination Requirements for Health Care Workers

  • November 05, 2021

The Centers for Medicare & Medicaid Services (CMS) issued November 4 an emergency regulation requiring an estimated 17 million health care workers in hospitals and other facilities and settings that participate in Medicare and Medicaid to be fully vaccinated for COVID-19 by January 4, 2022.

CMS initially announced that nursing homes would be required, as a condition of participating in Medicare and Medicaid, to ensure all their staff are vaccinated for COVID-19. The administration in September said it would expand the vaccination requirement to Medicare and Medicaid-participating hospitals, dialysis facilities, ambulatory surgical facilities, home health agencies, and other health care settings.

“Today’s action addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system to strengthen the health of people and the providers who care for them,” said CMS Administrator Chiquita Brooks-LaSure.

The move is part of a broad-based effort by the administration to counter the spread of COVID-19 in the face of the highly transmissible Delta variant, including directives issued in September requiring federal workers and federal contractors to be vaccinated. 

Meanwhile, also on November 4, the Occupational Safety and Health Administration (OSHA) released a much-anticipated emergency temporary standard requiring all businesses with 100 or more employees to ensure their workers are fully vaccinated or are tested on a weekly basis. The ETS does not apply to the health care workplace or to federal contractors, which are subject to separate vaccination requirements. 

Under the interim final rule with comment period, health care providers must establish policies to ensure all eligible staff receive the first dose of a COVID-19 vaccine before providing any care, treatment, or other services by December 5, 2021. By January 4, 2022, all eligible workers must be fully vaccinated, the agency said. 

The rule, which does not include an option for weekly testing in lieu of the vaccine, applies to workers regardless of whether their positions are clinical or non-clinical, including employees, students, trainees, and volunteers, and extends to contractors who provide treatment or other services for a covered facility, the White House said in a statement. The new rule also preempts any inconsistent state or local laws.

The regulation requires health care providers to establish a process for providing exemptions from the vaccination requirement for recognized medical conditions or religious beliefs, observances, or practices.

CMS said compliance with the requirements will be monitored through established survey and enforcement processes. Providers or suppliers cited as non-compliant will have an opportunity to come into compliance before additional actions are taken. “However, the Agency will not hesitate to use its full enforcement authority to protect the health and safety of patients,” the agency added.

CMS said nursing home vaccination rates have increased from 62% to 71% since the administration announced the COVID-91 vaccination requirement. The agency also cited a recent White House report indicating a sizeable uptick in vaccination rates in organizations with vaccination requirements.

According to CMS, 40% of all U.S. hospitals, have announced COVID vaccination requirements for their workforce without “widespread resignations in the health care workforce.”

The interim final rule was published in the November 5 Federal Register (86 Fed. Reg. 61555), with comments due January 4, 2022.

  • Coronavirus Pandemic