Home Health & Hospice Week

3 different deadlines for 3 different areas of the country sow confusion.

The other shoe has dropped for Texas home health and hospice agencies regarding the Medicare and Medicaid COVID-19 vaccination mandate.

Recap: When the U.S. Supreme Court issued its opinion on Jan. 13, allowing the Centers for Medicare & Medicaid Services to proceed with its COVID-19 vaccination mandate, the state of Texas was not included in the enforcement of the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule with Comment Period (IFC) (see HCW by AAPC, Vol. XXXI, No. 4). “CMS had not previously included Texas in any prior guidance on the COVID-19 Vaccine standards, due to pending litigation concerning enforcement of the CMS COVID-19 Vaccine standards in the state of Texas,” remind attorneys W. Clifford Mull and Catherine R. Gawron with law firm Benesch in online legal analysis.

However, after much legal wrangling, the U.S. District Court for the Northern District of Texas “issued an order dismissing the lawsuit without prejudice on January 19, 2022, allowing CMS to enforce the vaccine mandate nationwide,” note attorneys Jana Baker, James Paul, and Jody Ward-Rannow with law firm Ogletree, Deakins, Nash, Smoak & Stewart in online analysis. “Last, but not least, Texas joins the rest of the country,” the attorneys quip.

Then on Jan. 20, CMS released a Texas-specific memo for State Survey Agency directors with fresh guidance.

Phase 1: For facilities in Texas impacted by the mandate, CMS indicates first dose compliance “within 30 days after issuance of this memorandum” or Feb. 19. However, “if 30 days falls on a weekend or designated federal holiday, CMS will use enforcement discretion to initiate compliance assessments the next business day,” the agency adds in a footnote. That translates to a Tues. Feb. 22 deadline, since Feb. 19 is a Saturday and Mon. Feb. 21 is Presidents Day.

Phase 2: For the second dose, you’ve got 60 days to get your staff vaccinated — that's by March 21.

As a reminder, if your agency operates in one of the 25 states where the injunction against the mandate was lifted in December, the compliance date for Phase 1 was Jan. 27 and the compliance date for Phase 2 is Feb. 28. In the 24 states changed by the Jan. 13 Supreme Court decision, the compliance dates are Feb. 14 for Phase 1 and March 15 for Phase 2.

Bottom line: “Presently, all 50 states and territories are subject to the CMS vaccine mandate rule for staff,” explains the National Association for Home Care & Hospice.

Latitude: As in the other states, for the Texas February deadline, “a facility that is above 80 percent and has a plan to achieve a 100 percent staff vaccination rate within 60 days would not be subject to additional enforcement action,” CMS tells surveyors. “Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).” For the March deadline, CMS bumps it up to above 90 percent with a plan to achieve 100 percent staff vaccination within 30 days.

“Within 90 days and thereafter following issuance of this memorandum, facilities failing to maintain compliance with the 100 percent standard may be subject to enforcement action,” CMS stresses in the memo. “Federal, state, Accredi­tation Organization, and CMS-contracted surveyors will begin surveying for compliance with these requirements as part of initial certification, standard recertification or reaccreditation, and complaint surveys 30 days following the issuance of this memorandum.”

Given that flexibility, agencies should also know the 90-day implementation dates. They are March 28 in the earliest batch of states, April 14 in the second batch of states, and April 20 in Texas, NAHC notes in its member newsletter.

HHAs shouldn't dally, however. “CMS also noted that surveyors ... may adjust the level of citation and/or enforcement action if good faith efforts were taken to comply by demonstrating prior to the survey that the facility had limited access to vaccines or took aggressive steps to have all staff vaccines,” points out law firm MaguireWoods in analysis.

Remember: Impacted facilities, providers, and suppliers should also revisit state regulations as they update their policies and implement staff vaccination plans. “With Texas’s state vaccine executive order in conflict with the CMS rule, Texas employers may … want to ensure their policies make clear that their CMS-compliant policies apply to CMS-covered facilities and preempt the executive order,” say Baker, Paul, and Ward-Rannow. “On the other hand, for any employee not working in a CMS-covered facility, another policy and/or the provisions of the executive order may apply to them.”

Pin Down Your Date

If you find the three different implementation schedules confusing, you’re not alone. But CMS has issued a tool to help.

“This infographic illustrates the phases of the vaccination rule implementation, state-by-state, and their associated deadlines,” CMS says of its PDF chart http://www.cms.gov/files/document/health-care-staff-vaccination-rule-implementation-timeline.pdf. “Note that the phased deadlines vary by state,” the agency points out.

CMS has also released a one-page infographic summarizing the vaccination mandate specifics at https://www.cms.gov/files/document/covid-19-health-care-staff-vaccination-requirements-infographic.pdf, and a one-page decision tree to determine whether the vaccination requirements apply to your organization  at https://www.cms.gov/files/document/covid-19-health-care-staff-vaccination-requirements-decision-tree-graphic.pdf.

Surveyors Have A Vax Mandate Too

CMS also issued a Jan. 25 memo aimed at surveyors’ vaccinations. It specifies that “surveyors who are not fully vaccinated … should not participate as part of the onsite survey team performing federal oversight of certified providers and suppliers (including accreditation surveys performed under an AO’s deeming authority).” The exception is for those with medical or other approved exemptions. “Unvaccinated personnel may be used, at the State Survey Agency’s or AO’s discretion, for offsite survey or enforcement activities,” CMS offers.

“The State Survey Agencies and AOs are ultimately responsible for compliance with this expectation. Therefore, certified providers and suppliers are not permitted to ask surveyors for proof of their vaccination status as a precondition for entry,” CMS directs in memo QSO-22-10-ALL. Any “questions should be addressed to the State Survey Agency or AO. We encourage State Survey Agencies and AOs to proactively communicate with providers and suppliers about their efforts to implement this guidance,” CMS adds.

Note: The CMS memo on Texas compliance is at https://www.cms.gov/files/document/qso-22-11-all-injunction-lifted.pdf  and the memo on surveyor vaccinations is at https://www.cms.gov/files/document/qso-22-10-all.pdf. Updated vaccination FAQs, which outline the deadlines by state, are at https://www.cms.gov/files/document/cms-omnibus-covid-19-health-care-staff-vaccination-requirements-2021.pdf.