CMS Vaccine Mandate: Knowns, Unknowns and Next Steps

Posted on August 25, 2021 by Jonathan Lips

Since President Biden announced last week that CMS will develop regulations requiring all nursing homes to mandate COVID-19 vaccinations for their staff, LeadingAge Minnesota has been working closely with our national affiliate LeadingAge to seek additional information, better understand the directive, and advocate on behalf of our members.

Though several days have passed since the announcement, we still only know the core requirement. We continue to seek answers to many critical questions. Here's a snapshot of what we know and don't know at this time:

• When will the requirement take effect? The exact date is unknown. CMS has said that it will publish an emergency rule sometime in September. Once the rule is published and takes effect, we expect CMS will allow facilities some additional time to work with employees and take other necessary steps before the agency applies enforcement actions.
• What providers will be impacted by the mandate? The CMS announcement identifies only Medicare- and Medicaid-participating nursing homes. CMS could direct some action toward other Medicare providers or providers serving individuals enrolled in Medicaid waiver programs, but there is no indication of that at this time.
• How will CMS define staff for purposes of the mandate? We don’t yet know. In a May 2021 rule requiring nursing homes to offer vaccines and vaccine education, CMS defined staff as facility-employed personnel who work at least once a week and individuals who provide services on-site regularly under contract or arrangement. This includes hospice and dialysis staff, physical therapists, occupational therapists, mental health professionals, or volunteers. CMS may do the same here, but this is not yet clear.
• Will there be alternatives and accommodations? Whether CMS will allow staff who decline the vaccine to continue working and, if so, under what conditions, are critical questions. It seems reasonable to expect the rule to accommodate exceptions for medical reasons and religious beliefs, as private employers must do when enacting mandates. Still, CMS has not shared information about these or other bases for declining a vaccine or what it would require unvaccinated staff who continue working under this new requirement (such as increased testing, for example).
• How will CMS track compliance and enforce the rule? We expect CMS to audit compliance through analysis of the NHSN COVID-19 vaccination data that facilities report weekly. CMS has not spoken to enforcement, but the primary levers the agency has used during the pandemic have been financial (civil money penalties and denial of payment). LeadingAge issued a statement immediately after President Biden’s announcement, saying it would be a misstep to penalize facilities financially as a way to enforce this policy.

Advocacy Underway
We are actively working to inform state and federal officials about the severe workforce challenges aging services providers face – challenges the CMS mandate will only worsen depending on what the final policy requires. We are also working to shape the CMS rule to be as favorable as possible and advocate for assistance to providers that supports and sustains your critical workforce and strengthens your ability to serve and care for residents. LeadingAge Minnesota staff, together with our Long-Term Care Imperative partner, met on Monday with officials from the Minnesota Department of Health, the Minnesota Department of Human Services, and the Minnesota Department of Employment and Economic Development for an intensive discussion of workforce needs and possible solutions, and follow-up work is already in process.

Seeking Input
LeadingAge will host a Vaccine Mandate Member Town Hall this Thursday, Aug. 26, 2-3 p.m. CT, to help shape continued advocacy with the White House, CMS and Congress. LeadingAge members can register for the Town Hall in advance. Please also continue to share your questions and concerns with Jon Lips, Vice President of Regulatory and Legal Affairs at LeadingAge Minnesota, or other members of our team.