CMS is moving ahead with employee vaccine requirements in states and territories where the policy has not been enjoined by the courts. According to updated guidance, agencies are expected to have implemented phase 1 of the policy by Jan. 27, 2022, with full compliance expected by Feb. 28, 2022.
The public comment period for the interim final rule will close on Jan. 4, 2022, as originally scheduled.
In a memorandum to surveyors Dec. 28, 2021, CMS notes facilities that are not compliant with the updated timeline should “generally be given opportunities to return to compliance.” The memorandum includes thresholds for determining compliance for each phase.
There are 25 states where the policy will not be enforced pending further court action, including Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.
In those states and territories where the rule does apply, home health agencies are expected to have policies and procedures in place by Jan. 27 to meet the requirements of the rule. Also, all employees should have received at least one dose of a COVID-19 vaccine; have a pending request or have been granted a qualifying exemption; or have been identified as having a temporary delay as recommended by the CDC.
If the facility has not met the vaccine requirement, it will receive notice of its non-compliance with the standard. A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to an enforcement action, according to CMS. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency.
Plans and procedures
In the guidance to surveyors, CMS notes actions or job modifications that can be included in the plan and implemented to reduce the risk of COVID-19 transmission. Examples include:
- Reassigning staff who have not completed their primary vaccination series to non-patient care areas, to duties that can be performed remotely (i.e., telework), or to duties which limit exposure to those most at risk (e.g., assign to patients who are not immunocompromised, unvaccinated);
- Requiring staff who have not completed their primary vaccination series to follow additional, CDC-recommended precautions, such as adhering to universal source control and physical distancing measures in areas that are restricted from patient access (e.g., staff meeting rooms, kitchen), even if the facility or service site is located in a county with low to moderate community transmission.
- Requiring at least weekly testing for exempted staff and staff who have not completed their primary vaccination series, until regulatory requirements are met, regardless of whether the facility or service site is located in a county with low to moderate community transmission, in addition to following CDC recommendations for testing unvaccinated in facilities located in counties with substantial to high community transmission.
- Requiring staff who have not completed their primary vaccination series to use a NIOSH-approved N95 or equivalent or higher-level respirator for source control, regardless of whether they are providing direct care to or otherwise interacting with patients
- Read the complete guidance for surveyors regarding home health agency compliance with the vaccine mandate: https://go.cms.gov/3JrwbmY.
- Read the message to surveyors on broader compliance with the interim final rule: https://go.cms.gov/34b1iDj.
- Read CMS’ update on current emergencies: https://go.cms.gov/3Juz0n9.