Medicare Compliance & Reimbursement

Don’t delay as staff must have their first doses by Jan. 27.

If your organization is in one of the states where Medicare can enforce its vaccination rule, you should implement an action plan ASAP as due dates are fast approaching, new guidance suggests. And providers in other states should be prepared to hit the ground running, too.

Refresher: On Nov. 5, 2021, the Centers for Medicare & Medicaid Services (CMS) issued COVID-19 vaccination mandate regulations for specific providers and suppliers. The rules quickly underwent a series of legal challenges in federal courts across the nation. At one point, the CMS rule was blocked from implementation, but then the Fifth Circuit Court of Appeals lifted the injunction for 25 states and the District of Columbia (see Medicare Compliance & Reimbursement, Vol. 47, No. 24).

On Dec. 28, 2021, CMS issued new survey guidance and Frequently Asked Questions (FAQs) setting new compliance dates for the Medicare vaccination requirements. For now, they will apply to the 25 states where the injunction doesn’t apply — but know that the Supreme Court is slated to hear oral arguments on the legality of the mandate on Jan. 7 (see story, p. 5).

The guidance comes “despite continuing disputes as to the legality and enforcement of the CMS’ vaccine mandate,” note attorneys Rachel Goodman, Kate Pamperin, and Larry Perlman with law firm Foley & Lardner.

Add These Changes to Your Staff Vaccination Rollout

From the start, CMS, along with the Centers for Disease Control and Prevention (CDC), have advocated for healthcare workers to be fully vaccinated to circumvent the spread of COVID — and protect this critical workforce during the pandemic. And that’s part of the reasoning behind CMS’ mandates.

The two new compliance due dates specified in the Dec. 28, 2021 guidance memo to state surveyors QSO-22-07-ALL are:

Jan. 27: All staff must have their first dose of the COVID vaccine or have a pending or granted exemption request; related vaccination policies and procedures also must be developed and implemented.

Feb. 28: All staff must have completed their vaccine series, i.e. second dose, or have a granted exemption request.

Jan. 27 “is the date surveyors can begin to survey,” stresses Robert Markette Jr. with Hall Render in Indianapolis. Medicare providers “outside of the states subject to the federal injunction, now know the deadlines for compliance.”

Leeway: For the January 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 February deadline, CMS bumps it up to above 90 percent with a plan to achieve a 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% 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.”

Heads up: “Because the definition of ‘covered staff’ is broad, the CMS rule will also impact third-party employers that provide services at affected CMS providers and suppliers,” remind attorneys Patricia Anderson Pryor, Michael Bertoncini, and Sarah Skubas with Jackson Lewis P.C. in online legal analysis.

CMS Recognizes Holiday Hardships

Technically, CMS wouldn’t have to give providers an extra 30 days to get in compliance with the vaccination mandate. But “CMS recognizes that it may be difficult to schedule vaccine administration appointments over the holidays, particularly in light of increased demand for booster doses and the possibility that facilities may also choose to provide post-administration sick leave to recipients,” the agency says in its newly updated FAQs about the mandate. “By delaying enforcement of Phase 1 until January 27, 2021, CMS expects that covered facilities will be better equipped to mitigate potential short-term workforce disruptions.”

Plus: “CMS recognizes that facilities need time to restart and ramp up efforts to meet the requirements and that State Survey Agencies need time to restart and ramp up efforts to prepare to survey for compliance,” the FAQs say. “The preliminary injunctions delayed issuance of guidance and deprived stakeholders of the opportunity to communicate with CMS. The agency has no desire to disadvantage facilities that might have been reliant on the availability of such guidance.”

But just because CMS has shown a bit of lenience doesn’t mean the agency isn’t serious about compliance. “CMS is ... working to implement the [interim final rule with comment period] as expeditiously as reasonable in light of the ongoing urgency for the IFC,” the agency stresses.

Just keep in mind that compliance dates aren’t set in stone. The forthcoming Supreme Court activity “means you should expect more changes,” cautions Markette.

“Based on the Supreme Court’s ruling, we could see a variety of potential outcomes, ranging from entirely enjoining the mandate in all states and territories to lifting the injunction for the remaining 25 states,” speculate Goodman, Pamperin, and Perlman. “Either way, CMS’ position is likely subject to some change within the coming weeks and employers should remain attentive.”

Resource: Find the link to the five-page survey memo as well as 14 additional provider- and facility-specific links at >www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/guidance-interim-final-rule-medicare-and-medicaid-programs-omnibus-covid-19-health-care-staff-0?_cldee=anN1bmRlcmxhbmRAZ2hhLm9yZw==&recipientid=contact-84ce359ac7cfe81180d102bfc0a80172-9a48b8e631af46d58862859599c26001&esid=58216636-ed68-ec11-80fb-000d3a0ee828.