End of PHE to Bring Some Relief for Nursing Homes, Other Providers

With proposed staffing standards looming for skilled nursing facilities/nursing facilities (“SNFs/NFs”), a White House press release and a Centers for Medicare and Medicaid Services (“CMS”) Quality, Safety & Oversight Group (“QSO”) memorandum bring welcome news for providers that have been struggling with staffing since the early days of the COVID-19 pandemic.

In a press release issued on May 1, 2023, the White House announced that the Department of Health and Human Services will start the process to end the staff vaccination mandate for Medicare and Medicaid-certified providers and suppliers. CMS followed up the announcement with QSO-23-13-ALL, dated May 1, 2023 (the “Memorandum”), in which the agency signaled that its vaccination mandate will be going the way of the COVID-19 pandemic on or about the time the Public Health Emergency (“PHE”) ends on May 11, 2023, over three years since the entire globe was forced to grapple with the deadly disease. The Memorandum also details several other implications surrounding waivers and other regulatory flexibilities that will be affected by the end of the PHE.

Regarding the vaccine mandate that applies to Medicare and Medicaid-certified providers generally, CMS announced in the Memorandum that it would “soon end the requirement that covered providers and suppliers establish policies and procedures for staff vaccinations.” The agency stated that it would share more details in the coming days but noted that it “continue[s] to remind everyone that the strongest protection from COVID-19 is the vaccine.” Indeed, CMS submitted a final rule addressing the staff vaccination rule to the Office of Management and Budget (“OMB”) on May 2, 2023. Review by the OMB is the final step before a regulation is released for publication in the Federal Register.

The CMS staff vaccination mandate originated as an Interim Final Rule on November 5, 2021. It was challenged in federal court but was ultimately upheld by the Supreme Court of the United States on January 13, 2022, which paved the way for its implementation.

Despite the impending end of the vaccination mandate, providers will be free to institute their own vaccination requirement as a means of protecting their workforce from serious illness. However, for SNFs/NFs especially, all eyes turn to CMS for a proposed rule expected this spring that would institute minimum staffing ratios. The proposed rule, when issued, will constitute the culmination of a process by CMS that began in 2022 to study the feasibility of staffing ratios for SNFs/NFs. Thought to be a key indicator of quality, mandatory staffing ratios will place enormous pressure on some SNFs/NFs to hire and retain more nurses and certified nursing assistants (“CNAs”). This became difficult to do during the pandemic when the vaccination mandate and other factors led many of these workers to leave the field.

Another regulatory factor for SNF/NF providers to consider in their approach to COVID-19 mitigation following the end of the PHE is an imminent final rule from the Occupational Safety and Health Administration (“OSHA”) aimed at addressing and minimizing occupational exposure to COVID-19 in healthcare settings. The rule has been under review by OMB since December 7, 2022, with administrative meetings having concluded on February 2, 2023. The final rule, when promulgated, likely would adopt many of the provisions of OSHA’s emergency temporary standard (“ETS”) published on June 21, 2021. OSHA withdrew all non-recordkeeping provisions of the ETS on December 21, 2021 but has used the General Duty Clause of 29 U.S.C. § 654(a)(1), as well as the Personal Protective Equipment and Respiratory Protection Standards, to protect workers from the hazards presented by COVID-19 in the workplace. OSHA also stated that it would publish a proposed communicable disease standard sometime in 2023.

Depending on the requirements of the final OSHA COVID-19 rule and proposed communicable disease standard, SNFs/NFs, as well as other healthcare providers, may well elect to institute voluntary vaccination requirements for staff. For now, however, SNFs/NFs can breathe a sigh of relief and begin long-range planning to increase staffing in anticipation of the CMS rulemaking on staffing ratios.