ICYMI: CMS Revises COVID-19 Vaccine Mandate Interpretive Guidance

On April 5, 2022 the Centers for Medicare & Medicaid Services (CMS) released revisions to the interpretive guidance for the COVID-19 Vaccine Mandate Interim Final Rule (IFR). Three memos were updated including QSO-22-07-ALL-Revised, QSO-22-09-All-Revised and QSO-Revised. QSO-11-ALL-Revised.

CMS made revisions to clarify the expectations for assessing compliance with the requirement that all staff are vaccinated.

The following key points (bold) were made along with our recommendations (italicized):

Updated definition of “temporarily delayed vaccination” to include (deferred) and known COVID-19 infection until recovery from the acute illness (if symptoms were present) and criteria to discontinue isolation have been met. 

You need to make sure you have documentation to support why there is temporarily delayed vaccination. Even if this has been your policy, surveyors will scrutinize individual staff records.

​Clarified that facility staff who have been suspended or are on extended leave (e.g., FMLA, workers comp) would not count as unvaccinated staff for determining compliance.  

Do not include these employees on your matrix but keep documentation of them in case they are requested.

​Clarified that the list of “additional precautions” is not an all-inclusive list required to be followed. Specifically, CMS states:

“This requirement is not explicit and does not specify which actions must be taken. The examples are not all inclusive and represent actions that can be implemented. However, facilities can choose other precautions that align with the intent of the regulation which is intended to ‘mitigate the transmission and spread of COVID-19 for all staff who are not fully vaccinated.’”

Make sure your policy and procedures identify specifically what extra precautions the facility will use. Also, keep training records for your staff and make sure you are auditing staff daily for compliance

​Survey Process Updates for tag F888: 

​Surveyors will use the facility staff vaccination list or the Staff Vaccine Matrix to get a sampling of staff which will include contracted staff. 

Surveyors may modify the staff vaccination compliance review if the facility was determined to be in substantial compliance with this requirement within the previous six weeks. For Life Safety Code (LSC)-only complaint or LSC-only follow-up surveys, staff vaccination requirements are not required to be investigated.

This is great news that there can be some flexibility in the process. If you are using your own spreadsheet, it must contain all the information that is on the official survey matrix. Surveyors are mandated to accept your form if it has all the information.

​Added a note clarifying that failure of contract staff to provide evidence of vaccination status reflects noncompliance and should be cited at F888.

This clearly answers the question of whether you could accept an attestation statement from the agency. You must have the vaccination data for each agency staff member. Make sure you give the staffing agency this expectation and do not allow anyone to work if you do not have the documentation. 

Expanded upon options for surveyors to lower scope and severity to recognize good-faith efforts, specifically:

Surveyors and CMS may lower the scope and severity of a citation and/or enforcement action if they identify that any of the following have occurred prior to the survey (note: noncompliance is still cited, only the scope, severity, and/or enforcement is adjusted): 

If the facility has no or limited access to the vaccine, and the facility has documented attempts to obtain vaccine access (e.g., contact with health department and pharmacies). 

If the facility provides evidence that they have taken aggressive steps to have all staff vaccinated, such as advertising for new staff, hosting vaccine clinics, etc. 
For example, if the facility staff vaccination rate is 90 percent or more, there is no resident outbreak in the previous 4 weeks, and all policies and procedures were developed and implemented, per Table 1 this would be cited “D.” However, if the facility provides evidence that it has made a good faith effort by taking aggressive steps to get all staff vaccinated, surveyors may lower the citation to “A.”​

More great news!  Again, the key is documentation of the steps you have taken to meet the requirements. Especially if you are above 90%, make sure you question the surveyors on lowering scope and severity

If you have additional questions, please reach out to Jena Jackson at jena@whcawical.org, Jim Stoa at jstoa@whcawical.org or Rick Abrams at rick@whcawical.org.