CMS Issues Guidance on Compliance with Health Care Personnel Vaccination Mandate

The Centers for Medicare and Medicaid Services (CMS) issued guidance (QSO-22-07-ALL) on Dec. 28, 2021 describing how it will enforce compliance with its health care personnel (HCP) COVID-19 vaccination mandate. Providers in New York State that are subject to the CMS mandate, including nursing homes, certified home health agencies (CHHAs), and hospice programs, should be in an excellent position to comply with the CMS mandate as a result of earlier compliance with the New York State HCP mandate. However, providers should take note of the more detailed requirements in the CMS guidance pertaining to documentation of exemptions and vaccination status, additional precautions for unvaccinated staff who have received an exemption or a temporary deferral, and contingency plans for staff who have not completed the primary vaccination series.

The CMS guidance includes separate attachments for each type of covered provider. Providers are urged to review both the underlying memorandum and the relevant attachment for their service type. The CMS guidance documents relevant to LeadingAge NY members are:

The guidance sets forth a phased approach to surveillance and enforcement of the HCP vaccination mandate. It directs state survey agencies to begin surveying for compliance with the interim final rule 30 days from the date of issuance (i.e., Jan. 27^th) in the states not currently covered by the injunctions. In order to demonstrate compliance, providers must have developed and implemented the necessary policies and procedures for reviewing and documenting requests for exemptions, tracking vaccination status, additional precautions for unvaccinated staff, and contingency plans. In addition, survey agencies are directed to implement the following approach to enforcement:

Phase 1 compliance requires that all staff have received at least one dose of a COVID-19 vaccine or requested an exemption from vaccination by Jan. 27, 2022. Providers must also implement required policies and procedures by this date. Providers that demonstrate that at least 80 percent of staff either have received one dose or have a pending or approved request for an exemption by this date, with a plan for 100 percent vaccination within 60 days, would be subject to citation but not enforcement remedies.
Phase 2 compliance requires that all staff have completed a primary vaccine series or been granted an exemption from, or a temporary delay of, vaccination by Feb. 28, 2022. Providers that demonstrate that more than 90 percent of staff have completed the series, are exempt, or qualify for a delay by this date, with a plan for 100 percent vaccination within 30 days, would be subject to citation but not enforcement remedies.
Phase 3 begins 90 days following issuance of the memorandum and requires facilities to maintain compliance with the 100 percent standard or face the possibility of an enforcement action.

Nursing homes, CHHAs, and hospice programs that are found to be out of compliance may be subject to enforcement remedies that include civil monetary penalties, denials of payment, and, in extreme cases of continued non-compliance, termination of the Medicare provider agreement. Specifically, nursing homes that are determined to be non-compliant will be subject to citations under new F-tag F888.

LeadingAge National has provided a list of 10 processes that must be documented in policies to comply with the CMS rule. It has also shared an array of resources, including template exemption request forms, available here.

Notably, the U.S. Supreme Court will hear arguments on Jan. 7, 2022 in lawsuits challenging the CMS vaccination mandate and the Occupational Safety and Health Administration (OSHA) Vaccination Emergency Temporary Standard (ETS). Until a decision is rendered, CMS is enforcing its mandate only in the 25 states (including New York) that are not subject to the federal injunctions.