CMS and OSHA Release New Vaccine Mandates

​​​Today, the Centers for Medicare & Medicaid Services (CMS) published an interim final rule (IFR), with comment period, that revises the requirements that most Medicare- and Medicaid-certified providers must meet to participate in the Medicare and Medicaid programs. The Biden Administration is requiring covered​ health care workers to be vaccinated through this IFR released by CMS. Particular items to note are:

  • ​The regulations are in a phased-in approach. Phase I implementation must be done by December 6, 2021. Phase II implementation must be done by January 4, 2022. Details of each phase are provided below. 

  • Phase I - Effective December 6, 2021 - Skilled Nursing Facilities, Nursing Facilities, and ICF-IIDs (note, while this does not apply to assisted living providers, the OSHA requirement (see below) does if they have 100 or more employees) must establish a policy ensuring that all eligible staff have received by December 6, 2021 the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services, or have requested or been granted exemption. 
    • Exemptions based on recognized medical conditions or religious beliefs, observances, or practices are included in the rule. 
    • Included staff are individuals who provide care, treatment, or other services for the facility and/or its patients:
      • ​facility employees
      • licensed practitioners
      • students
      • trainees
      • volunteers
      • anyone under contract or other arrangement.
    • ​​Contractual or arranged workers may include hospice, dialysis, physical therapy, occupational therapy, mental health professionals, social workers, portable x-ray suppliers, etc., and are included in “staff” for whom COVID-19 vaccination is now required as a condition for continued provision of those services for the facility and/or its residents regardless of the frequency for which they enter the facility. 
    • An exception is made for 100% teleworkers as they are not included in the required staff vaccination. However, if they come into the facility at all, they are then included in the staff vaccination requirement
    • When determining whether to require COVID-19 vaccination of an individual who does not fall into the categories established by the IFR, facilities should consider frequency of presence, services provided, and proximity to patients and staff. 

​Facilities are required to track and securely document the vaccination status of each staff member, including those for whom there is a temporary delay in vaccination, such as recent receipt of monoclonal antibodies or convalescent plasma. Vaccine exemption requests and outcomes must also be documented. Documentation will be an ongoing process as new staff are onboarded. Examples of acceptable forms of proof of vaccination include:

    • ​​CDC COVID-19 vaccination record card (or legible photo of the card)
    • Documentation of vaccination from health care provider or electronic health record
    • State immunization information system record
    • If vaccinated outside of the U.S., an equivalent to previous examples is acceptable

  • Phase II - Effective January 4, 2022 - Requires that primary vaccination series has been completed and that staff are fully vaccinated, except staff who have been granted exemptions, or those whom COVID-19 vaccination must be temporarily delayed as recommended by the CDC due to clinical precautions and considerations. Staff who have completed the primary series for the vaccine by January 4, 2022, are considered to have met the requirements, even if they have not yet completed the 14-day waiting period required for full vaccination.

CMS makes clear that the IFR issued today does not apply to assisted living. 

The Occupational Safety and Health Administration (OSHA) released its vaccine requirement for employers with more than 100 employees (corporation-wide). It appears that this also does not apply to assisted living providers. OSHA specifically excludes the health care employers covered by this past summer’s emergency temporary standards (ETS), which did cover assisted living settings. It is likely that assisted living was unintentionally left out and the language will probably be changed at some point in the future to cover the health care settings not included in the CMS IFR. ​Additionally, today’s OSHA ETS does not apply to the SNF, NF, and ICF-IID providers that are covered under the CMS rule above. 

Highlights of today’s OSHA ETS include: 

  • By January 4, 2022, employers must ensure that their employees have completed their primary series of vaccination. 
    • ​If employees have not completed their primary series at that time, they will need to provide a verified weekly test to their employees on a weekly basis. If an employee tests positive on a COVID-19 test they must be removed from the workplace until it is safe for them to return. 
    • Employers are not required to cover the cost of this weekly testing. 
    • Those employees who are not vaccinated will also be required to wear a mask while in the workplace. 
  • ​By December 6, 2021, employers must provide employees paid time to get vaccinated and recover from any side effects. 
  • Employers are required to obtain proof of vaccination and maintain records of each employee’s vaccination status. 

These CMS and OSHA rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

AHCA/NCAL will be submitting comments on the CMS IFR and encourages provider members to do so as well. AHCA/NCAL will also be hosting a webinar on Friday, November 5 at 1:30 PM ET to review these rules. Members are encouraged to attend.​​