Providers Must Continue Preparation for Implementation of CMS Vaccination Mandate

As previously reported, CMS has announced that it will begin enforcing its Omnibus COVID-19 Health Care Staff Vaccination mandate for facilities located in all states where the rule is not currently blocked by a legal injunction, including Minnesota. CMS has not published new information over the past several days, but we wanted to share what we know for any readers who missed our story last week.

The CMS vaccination mandate is currently blocked by court order in 25 states, not including Minnesota. The Biden Administration has appealed to the US Supreme Court to have the injunctions lifted in those states where the rule is blocked, and the Court will hear oral arguments on the CMS and OHSA rules on Friday, Jan. 7. The hearings will be broadcast live at the Supreme Court’s homepage beginning at 9 a.m.

Meanwhile, CMS is moving ahead to implement and enforce the rule in states where it is not blocked. To reflect the delays that occurred as a result of legal challenges to the rule, CMS has modified the compliance dates:

• Jan. 27, 2022, is the new Phase 1 deadline, by which time the required policies and procedures must be developed and implemented. All staff must have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC.
• Feb. 28, 2022, is the new Phase 2 deadline, by which time the required policies and procedures must be developed and implemented. All staff have received the necessary doses to complete the vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series), or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC.

Based on a meeting with CMS on Jan. 4, our LeadingAge colleagues have reported that during the first 30 days of a person's employment, a new staff member may start working and caring for residents provided they have received one dose. The facility will be responsible for ensuring the person gets the second dose if the vaccine is Pfizer or Moderna. We are seeking clarification on how the exemptions process applies to new hires.

Memorandum QSO-22-07-ALL provides general information about the implementation plan, and CMS has separately posted guidance specific to each affected provider and supplier type, including Attachment A: LTC Facilities (nursing homes). Guidance for other provider types is available here. CMS has also created a decision-tree infographic and updated the Omnibus COVID-19 Health Care Staff Vaccination Requirements FAQ (PDF).

Surveyors will review for compliance with the vaccination requirement (with citations to be recorded under a new tag, F888) beginning Jan. 27 on all initial certification, standard recertification surveys, and complaint surveys. The Infection Prevention, Control & Immunizations Facility Task (CMS-20054) and associated survey documents will be updated soon to include the new requirement for staff vaccination.

The Attachment A Guidance explains how CMS will define the scope and severity of tags issued for non-compliance. It also describes a sort of good-faith effort approach relating to compliance, noting, for example, that a facility that is above 90% at the Phase 2 deadline and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to an enforcement action.

The guidance also addresses topics where providers have been asking for more information:

• It provides examples of additional precautions (actions or job modifications) that a facility can implement to reduce the risk of COVID-19 transmission by staff who are not fully vaccinated.
• It addresses processes and mechanisms for tracking staff vaccinations, including a comment that survey teams will provide a matrix that facilities may use. We understand that CMS will likely post the matrix and other survey tool updates within the next two weeks.
• The guidance also speaks to the documentation of medical and exemptions. CMS notes that “surveyors will not evaluate the details of the request for a religious exemption, nor the rationale for the facility's acceptance or denial of the request. Rather, surveyors will review to ensure the facility has an effective process for staff to request a religious exemption for a sincerely held religious belief.”

We will continue to provide updates for members as CMS or MDH releases new information. Please contact Jonathan Lips or Kari Everson with any questions about the mandate.

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