The U.S. Centers for Medicare & Medicaid Services (CMS) has issued survey guidance outlining enforcement policies and procedures for the agency’s requirement for health care workers to be vaccinated against COVID-19, indicating that staff must receive one dose by Jan. 27 and be fully vaccinated by Feb. 26. The guidance does not apply in states in which federal judges have suspended implementation of the mandate.
The agency indicated that anything less than 100% staff vaccination would be considered non-compliance. For hospices, potential penalties could include monetary fines, denial or payments or termination of the providers’ participation in Medicare or Medicaid, which CMS said would be a last resort. Health care providers would have an opportunity to take corrective action to ensure compliance prior to such a termination.
“Hospices must have a process for ensuring all staff have received at least a single-dose, or the first dose of a multi-dose COVID-19 vaccine series prior to providing any care, treatment, or other services for the facility and/or its patients,” CMS said in the new guidance. “The policy must also ensure those staff who are not yet fully vaccinated, or who have been granted an exemption or accommodation as authorized by law, or who have a temporary delay, adhere to additional precautions that are intended to mitigate the spread of COVID-19.”
The regulation allows for exemptions for health-related or religious reasons. Also exempt are staff who exclusively provide telehealth or telemedicine services and do not have any direct contact with patients, patient families and caregivers, as well as personnel who provide support services for the hospice exclusively outside of care settings and do not have any direct contact with patients or families.
CMS announced the rule in November in conjunction with a similar mandate from the U.S. Occupational Safety & Health Administration (OSHA) that applied to all employers with 100 employees or more. Unlike CMS, the OSHA regulation is not limited to health care companies. Both of the rules have been challenged in the courts, with the Biden Administration pledging to defend them. The U.S. Supreme Court will likely have the final say.
Federal judges in Missouri and Louisiana ordered preliminary injunctions on the CMS mandate, blocking implementation in plaintiff states until these cases are ultimately decided. As a result, CMS will not be enforcing the rule in 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.
“Surveyors in these states should not undertake any efforts to implement or enforce the regulation,” CMS indicated in the guidance.
The CMS mandate applies to any staff who provide any care, treatment or services for the health care organization or its patients, including new and current employees as well as those under contract or other arrangement, regardless of clinical responsibility or patient contact. The rule is also applicable to staff that primarily provide services remotely that occasionally encounter fellow staff or enter a care setting.
The rule states that hospices must have a “contingency plan” to address workers who do not become vaccinated as required under the emergency regulation.
