CMS Issues Revised Vaccination Mandate Guidance with Enforcement Provisions for Nursing Homes

On Oct. 26, 2022, the Centers for Medicare and Medicaid Services (CMS) issued revised guidance to surveyors regarding determining compliance with staff vaccination requirements and citing deficiencies for tag F888. The QSO covers all Medicare/Medicaid-certified facilities and agencies. With respect to nursing homes, QSO Attachment A states:

Vaccination Enforcement:

CMS expects all facilities’ staff to have received the appropriate number of doses by the timeframes specified in the memorandum unless exempted as required by law. Facility staff vaccination rates under 100% of unexcepted staff constitute noncompliance under the rule. Noncompliance does not necessarily lead to termination, and facilities will generally be given opportunities to return to compliance. For example, a facility that is noncompliant and has implemented a plan to achieve a 100% staff vaccination rate would not be subject to an enforcement action. See Citing Noncompliance – Scope and Severity below for additional information.

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Citing Noncompliance - Scope and Severity:

Hospitalizations and deaths currently remain relatively low nationwide. This is a testament to the tools and protections in place today, particularly the work that federal, state, local, and private partners have done to get over 226 million people vaccinated and over 111 million boosted. Therefore, CMS is directing that the level of severity and scope for noncompliance at F888 will be cited at severity level 1, with a scope of widespread, or “C.” Noncompliance is based on the failure to implement policies and procedures at 483.80(i)(3)(ii).

Situations indicating egregious noncompliance, such as a complete disregard for the requirements, should be cited at severity level 2, with a scope of widespread, or “F.” Examples of egregious noncompliance could include more than 50% of staff being unvaccinated (unless exempted, or temporarily delayed), and/or no policies or procedures as required. When there are egregious cases of noncompliance, state survey agencies should notify the CMS location of the information.

NOTE: Regardless of a facility’s compliance with the staff vaccination requirements, surveyors should closely investigate infection prevention and control practices at F880 to ensure proper practices are in use, such as proper use of personal protective equipment, transmission precautions which reflect current standards of practice, and/or other relevant infection prevention and control practices are in place, which are designed to minimize transmission of COVID-19.

LeadingAge NY encourages all other providers to review their Attachment for further clarification of the new guidance.

If you have any questions, please feel free to reach out to any member of the Policy team.

Contact: Amy Nelson, anelson@leadingageny.org, 518-867-8383 ext. 146