CMS Issues QSO Memos to Enforce Vaccine Mandate in 49 States Following Supreme Court Action

​​The U.S. Supreme Court has stayed the preliminary injunctions against enforcement of the Centers for Medicare and Medicaid Services (CMS) interim final rule. This means CMS can enforce its vaccine mandate in states previously exempted due to the stay, with the exception of Texas.

CMS has released two QSO memos with separate deadlines for implementation. All other provisions are the same.

  • The December 28, 2021 QSO Memo applies to California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin.
  • The January 15, 2022 QSO Memo applies to providers in the following states: 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, Utah, West Virginia and Wyoming.

*Important note: The guidance in this enforcement does not apply to Texas as of January 17, 2022.

CMS establishes the same requirements in both memos but offers separate compliance deadlines starting 30 days from the issuance of either memo. AHCA/NCAL has highlighted key points below, but providers in the above states are strongly encouraged to review the applicable QSO memo in full.

Long-term care facilities are able to track weekly COVID-19 vaccination data for residents and healthcare personnel through NHSN. For more information, please click HERE.


Which staff fall under the rule? 

Staff refers to all individuals providing any care or services for the facility and its residents, whether under contract or arrangement. The only individuals this does not apply to are individuals who telework full time or who provide services entirely remotely.

When are facilities in the states listed above required to be in compliance?

CMS implementation will be phased in as follows, depending on state. See map above and list to determine which applies for your facility.

  • January 27 or February 14, 2022 for the first dose for two dose regime (i.e., mRNA Pfizer or Moderna) or J&J if electing to receive the J&J, which includes:
    • Policies and procedures developed and implemented (template policies and procedures are available on the AHCA/NCAL COVID-19 website under ‘Vaccines’).
    • 100 percent of staff having received one dose of vaccine, except those with or pending an exemption request and those having a temporary delay recommended by the CDC.
    • A facility above 80 percent and has a plan to achieve a 100 percent staff vaccination rate within 60 days would not be subject to enforcement action (e.g., civil monetary penalties [CMPs]).
  • February 28 or March 15, 2022 for the second dose for two dose regime, which includes:
    • ​Policies and procedures developed and implemented.
    • 100 percent of staff having completed the vaccine series, except those with granted exemption request and those having a temporary delay recommended by the CDC.
    • A facility above 90 percent and has a plan to achieve a 100 percent staff vaccination rate within 30 days would not be subject to enforcement action (e.g., CMPs).

How will compliance be determined?

Compliance will be determined through the regular survey process, including through standard and complaint visits and vaccination rates will be calculated from facility records and will take exemptions into consideration. Facilities are expected to track vaccination status, including booster status for each staff person and any exemptions, using a tracking tool of their choice. A facility’s tracking mechanism should clearly identify each staff member’s role, assigned work area, and how they interact with residents. Survey teams will also ask for information on how unvaccinated staff are assigned and additional precautions taken to prevent transmission. CMS will provide a specific tool for facilities to use at the time of the survey.

How will citations, including scope and severity, be determined?

Facilities found out of compliance (less 100 percent of staff vaccinated, not including those with valid exemptions) will receive a citation with scope and severity based on staff vaccination rates, number of COVID-19 cases, policy and procedure implementation, and infection control practices.

In the QSO memo, CMS provides detailed guidance on scope and severity and a scope and severity grid on page 14.

CMS also recently held a training for long-term care surveyors on enforcement of the vaccination rule. To view the slides and notes from the webinar, please click HERE.

Do unvaccinated staff need to follow any special precautions?

Yes, staff who are not yet fully vaccinated regardless of the reason must adhere to additional precautions that are intended to mitigate the spread of COVID-19. There are a variety of actions or job modifications a facility can implement to potentially reduce the risk of COVID-19 transmission including but not limited to:

  • ​Reassign unvaccinated staff to non-patient areas and duties.
  • Require 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 even if the facility is located in a county with low-to-moderate community COVID transmission. Although OSHA’s vaccine mandate is not in effect, there are additional  OSHA-required measures which should also be followed.
  • Require at least weekly testing.
  • Require use of 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.

AHCA/NCAL interprets this to mean providers must follow at least one of these stated precautions, or at least one other reasonable precaution not stated on this list. However, they are seeking clarity from CMS on whether this interpretation is correct and will communicate the response with members. This language is the same language CMS uses for other providers (e.g., hospitals) that are covered by this regulation.

Posted in COVID-19