November 5, 2021

The Centers for Medicare & Medicaid Services (“CMS”) issued an Interim Final Rule, effective November 5, 2021, requiring Medicare and Medicaid-certified providers and suppliers (“Facilities”) to implement mandatory COVID-19 vaccination for all eligible staff. The Interim Final Rule applies to the following Facilities:

• Ambulatory Surgical Centers;
• Hospices;
• Psychiatric residential treatment facilities (PRTFs);
• Programs of All-Inclusive Care for the Elderly (PACE);
• Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities);
• Long Term Care Facilities, including Skilled Nursing Facilities and Nursing Facilities;
• Intermediate Care Facilities for Individuals with Intellectual Disabilities;
• Home Health Agencies;
• Comprehensive Outpatient Rehabilitation Facilities;
• Critical Access Hospitals;
• Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services;
• Community Mental Health Centers;
• Home Infusion Therapy suppliers;
• Rural Health Clinics/Federally Qualified Health Centers; and
• End-Stage Renal Disease Facilities.

The vaccination requirement applies to all staff that perform duties at any site of care or have the potential to have contact with staff or patients: facility employees, licensed practitioners, students, volunteers, individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements, administrative staff, facility leadership, volunteer or other fiduciary board members, housekeeping and food services. Staff who telework full-time are exempt, and Facilities are not required to mandate vaccination for those individuals who provide infrequent non-health care services or services performed exclusively off site.

Facilities must provide exemptions for staff that align with Federal law, including those required by the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964.

Facilities have until December 5, 2021 to ensure that a vaccine policy is in place and applicable staff have received a single dose COVID-19 vaccine, the initial dose of a primary series, or have been granted a lawful exemption. All eligible staff must be fully vaccinated by January 4, 2022.

CMS will ensure compliance with these requirements through its established survey and enforcement processes.  If a Facility does not meet the requirements, the Facility will first be cited as being noncompliant and will have an opportunity to comply before CMS takes additional action, which may include termination of the Facility’s Medicare/Medicaid provider agreement.

The Interim Final Rule as published in the Federal Register is available here. In addition, CMS published an FAQ on the Interim Final Rule available here.