On September 9, 2021, President Biden released his COVID-19 Action Plan. The plan requires COVID-19 vaccinations for more than 17 million healthcare workers at Medicare and Medicaid participating hospitals and other healthcare settings.

The Centers for Medicare & Medicaid Services (CMS) also announced that it will issue emergency regulations requiring vaccinations for workers in hospitals, dialysis facilities, ambulatory surgical settings, nursing homes, home health agencies, and others to be identified by CMS as a condition for participating in the Medicare and Medicaid Programs. CMS is currently developing the interim final rule that will be issued in October.

This action by President Biden and CMS builds on the vaccination requirements for nursing facilities that was announced by CMS on August 18, 2021. The newly announced vaccination requirements will apply to nursing home staff as well as staff in hospitals and other settings to be identified by CMS including: clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.

The decision to require COVID-19 vaccinations for workers in most healthcare facilities that receive Medicare and Medicaid funds was based on the continued and growing spread of COVID-19 in healthcare settings. CMS expects certified Medicare and Medicaid facilities to act in the best interest of patients and staff by complying with the new COVID-19 vaccination requirements. CMS is currently urging unvaccinated healthcare workers employed in these facilities to begin the vaccination process immediately. CMS is also urging facilities to use all available resources to support employee vaccinations, including employee education and clinics, as they work to meet the new federal requirements.

This new requirement will have a significant impact on healthcare facilities that receive Medicare and Medicaid funds. The new requirement is anticipated to impact approximately 50,000 providers and over 17 million healthcare workers. At this time, there are still several questions left unanswered:

• Will there be any exemptions for healthcare workers with certain religious beliefs or health care issues?
• Will healthcare workers have the ability to opt out of the vaccine and instead submit to weekly COVID-19 tests like workers at employers with 100 or more employees? Additional information on President Biden’s plans to require all employers with 100 or more employees to ensure that their workforce is fully vaccinated or require any workers who remain unvaccinated to undergo weekly testing and produce a negative test result before coming to work is available here.
• How will compliance be monitored by CMS?
• Will healthcare facilities be subject to any reporting requirements?
• How much time will healthcare facilities have to get in compliance with the new requirements?
• If a healthcare worker presents counterfeit COVID-19 vaccination records, will there be any protections for healthcare facilities that rely on such counterfeit records in good faith?

We anticipate that most of these questions and others will be answered in October when CMS releases the interim final rule. We will continue to monitor this situation closely and provide updates as soon as we are aware of them.