What is the CMS Mandate for 2023?

The Centers for Medicare & Medicaid Services (CMS) oversees various healthcare regulations and requirements for providers participating in Medicare and Medicaid programs. During the COVID-19 pandemic, CMS instituted vaccine mandates for healthcare staff in many facilities. However, CMS has now ended this federal vaccine mandate as of 2023.

Below we’ll cover the background on CMS’ COVID-19 vaccine requirements, why the mandate was withdrawn for 2023, and what healthcare providers need to know going forward.

CMS COVID-19 Vaccine Mandate

In November 2021, CMS announced a COVID-19 vaccination requirement for staff at healthcare facilities participating in Medicare and Medicaid programs.

This interim final rule mandated that staff at the following types of facilities be fully vaccinated against COVID-19 by January 2022:

• Hospitals
• Ambulatory Surgery Centers
• End-Stage Renal Disease Facilities
• Home Health Agencies
• Hospices
• Long-Term Care Facilities
• Intermediate Care Facilities
• Clinics/Physician Offices
• Community Mental Health Centers
• Home Infusion Therapy Suppliers
• Rural Health Clinics
• Federally Qualified Health Centers

The rule applied to employees, volunteers, trainees, and anyone who worked on-site at these facilities. There were exemptions for medical and religious reasons.

Unvaccinated individuals could not provide treatment, services, or other healthcare operations for Medicare/Medicaid patients after the January 2022 deadline.

CMS began surveying providers and enforcing compliance with fines and potential termination from Medicare/Medicaid programs for those without mandated vaccines starting in 2022.

Why Did CMS Withdraw the Vaccine Mandate?

In June 2023, CMS published a new final rule withdrawing the COVID-19 vaccine requirements for healthcare staff at Medicare/Medicaid facilities.

There were several factors behind reversing course on mandating staff vaccines:

Declining COVID-19 Risk

With COVID cases, hospitalizations, and deaths substantially lower in 2023, the emergency circumstances that prompted vaccine mandates have waned.

End of Public Health Emergency

The U.S. national COVID-19 public health emergency officially ended in May 2023 after being in place since January 2020. This shifted the policy priorities and need for emergency measures.

Supreme Court Rulings

Supreme Court decisions in 2022 rejected the government’s authority to impose broad federal vaccine mandates for employers. This impacted CMS’ ability to enforce healthcare staff vaccine requirements.

Change in Administration Policy

The Biden administration announced in May 2023 it would begin winding down COVID-19 emergency measures and shift to encouraging rather than mandating vaccinations. CMS aligned its healthcare policies with this change.

Stakeholder Feedback

Many healthcare providers and industry groups opposed broad vaccine mandates and warned of staff shortages if enforced. This feedback influenced CMS’ decision to make vaccines voluntary rather than compulsory.

Given these factors, CMS determined the COVID-19 public health emergency had ended and lifted the vaccine mandate as part of its shift back towards normal healthcare regulatory policies.

What is CMS’ Policy on COVID-19 Vaccines in 2023?

CMS has made COVID-19 vaccination optional rather than mandatory for healthcare personnel in 2023. Specifically:

• COVID-19 vaccines are no longer required by CMS for any healthcare staff.
• Facilities will not face enforcement, penalties, or termination from CMS programs for unvaccinated staff.
• State or local jurisdictions may still have vaccine mandates in place that facilities must follow.
• Healthcare providers can voluntarily choose to require COVID-19 vaccines based on their own policies.

While no longer mandated, CMS still strongly encourages healthcare staff and patients to get vaccinated and boosted against COVID-19.

CMS guidance states vaccines remain critical for public health and an important tool for protecting healthcare personnel and vulnerable individuals.

However, the agency has shifted to focusing on education, incentives, and quality measures for encouraging vaccines rather than federal requirements.

How are COVID-19 Vaccines Encouraged Under the New CMS Policy?

Although COVID-19 vaccines are not federally mandated, CMS is still promoting vaccination through the following means:

Education

CMS expects healthcare facilities to continue providing education to staff and patients on the risks of COVID-19 and the importance of vaccination.

Quality Metrics

CMS will monitor COVID-19 vaccination rates among healthcare personnel and patients through its quality measurement programs. Meeting targets can impact Medicare reimbursement payments.

Public Reporting

CMS may publicly report COVID-19 vaccination rates for healthcare facilities on its Care Compare website to allow consumers to consider this information.

Supporting State/Local Mandates

CMS will not interfere with or discourage state or local jurisdictions that pursue their own COVID-19 vaccine mandates for healthcare personnel.

Advocating Vaccines

In public communications, CMS continues to urge healthcare staff and vulnerable patients to get all recommended COVID-19 vaccine doses.

While no longer federally required, COVID-19 vaccines remain an important aspect of CMS’ public health policies and recommendations for healthcare providers.

What About the CMS Healthcare Staff Vaccine Mandate in 2022?

For background, while CMS has eliminated the COVID-19 vaccine mandate for healthcare personnel in 2023, it was in effect and enforced by CMS throughout 2022.

Key details on the CMS vaccine mandate in 2022 include:

• Announced in November 2021 targeting Medicare/Medicaid healthcare facilities
• Required first vaccine doses by January 4, 2022 for healthcare staff
• Began national enforcement of the mandate on January 20, 2022
• Resulted in terminations, fines, and other penalties for noncompliant facilities
• Led to legal challenges but ultimately upheld by Supreme Court rulings
• Applied to employees, volunteers, trainees, and contractors at covered facilities
• Allowed exemptions for recognized medical conditions or religious beliefs
• Mandated vaccines for workers at hospitals, nursing homes, dialysis clinics, home health agencies, hospices, and other healthcare sites

The CMS vaccine mandate was controversial but effective in getting millions of healthcare personnel vaccinated throughout 2022 before being lifted for 2023.

Does Ending the Mandate Ban COVID-19 Vaccine Requirements?

No, the reversal of the CMS COVID-19 vaccine mandate does not prohibit healthcare facilities from requiring vaccines if they choose to do so independently.

Specifically:

• Providers can decide to mandate COVID-19 vaccines for staff and contractors based on their own policies.
• Hospitals, long-term care facilities, physician practices and others are free to implement vaccine requirements.
• OSHA rules still allow employers to mandate COVID-19 vaccines if they determine it is a business necessity.
• However, facilities may not cite CMS or federal requirements as a basis for their own vaccine mandates.
• Labor and employment laws may impact the process for staff vaccine requirements.

So while CMS will not enforce a federal vaccine mandate, healthcare facilities can assess factors like local COVID-19 conditions, staff shortages, and other considerations to decide if their own vaccine requirements are prudent.

CMS emphasizes its new rules do not prohibit providers from pursuing vaccine mandates through their own internal programs if they deem it appropriate.

What Does This Mean for Healthcare Employers and Staff?

With CMS reversing the federal COVID-19 vaccine mandate, the key implications for healthcare organizations and personnel include:

For Employers

• No CMS penalties or termination from Medicare/Medicaid for allowing unvaccinated staff
• More flexibility in policies to address staff shortages and other needs
• Can still mandate vaccines independently if desired based on local factors
• Should update policies, HR procedures, compliance protocols to align with new rules

For Staff

• No federal CMS requirement for COVID-19 vaccines
• But employers may still mandate vaccines under their own rules
• Unvaccinated employees can continue serving Medicare/Medicaid patients
• Staff should clarify with employer if any vaccine requirements remain in place

The end of CMS’ vaccine mandate gives healthcare employers more flexibility on policies and eases compliance burdens related to unvaccinated staff. But facilities and personnel should still verify their organization’s approach given the evolving COVID-19 landscape.

Key Takeaways

• CMS required COVID-19 vaccination for health staff in Medicare/Medicaid facilities through 2022
• This mandate was controversial but increased vaccine rates during the pandemic
• CMS withdrew the federal vaccine mandate due to lower COVID-19 risk and changing policies
• For 2023, COVID-19 vaccines are optional for healthcare personnel per CMS rules
• However, providers can still mandate vaccines independently based on their own criteria
• CMS still encourages healthcare staff vaccination through education, incentives and other means

The COVID-19 pandemic led CMS to implement unprecedented vaccine mandates to protect staff and patients in healthcare settings. With the public health situation improving in 2023, CMS is aligning with the overall shift in government policy towards more voluntary COVID-19 measures. Healthcare employers still have autonomy to pursue staff vaccine requirements as they see fit based on local needs and organizational priorities.