To help members comply with the CMS guidance enforcing the interim final rule (IFR) issued November 5, 2021, mandating the COVID-19 vaccine in health care settings, AHCA/NCAL has updated its template policies and procedures. QSO-22-07-ALL and the attachment specific to long term care (LTC) and skilled nursing facilities outline the requirements that LTC providers must meet in order to be in compliance with the vaccine mandate. It is important to note that the IFR and CMS guidance do apply in Virginia.

The guidance does not apply to 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, Texas, Utah, West Virginia, and Wyoming.

The US Supreme Court has a hearing set for January 7 to determine whether this rule will apply to all states or if the rule is invalidated. AHCA/NCAL encourages providers in all states to anticipate and prepare for compliance with this rule.

AHCA/NCAL has pulled out key points below, but strongly encourages providers to review the QSO memo in full. 

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 required to be in compliance?

CMS implementation will be phased in:

• January 27, 2022 (30 days) for the first dose, which includes:
  • Policies and procedures developed and implemented (template policies and procedures are available on the AHCA/NCAL COVID-19 website under ‘Vaccines’)
  • 100% of staff having received one dose of vaccine, except those with or pending exemption request and those having a temporary delay recommended by CDC
  • A facility above 80% and has a plan to achieve 100% staff vaccination rate within 60 days would not be subject to enforcement action.

• February 28, 2022 (60 days) for the second dose, which includes:
  • Policies and procedures developed and implemented
  • 100% of staff having completed the vaccine series, except those with granted exemption request and those having a temporary delay recommended by CDC
  • A facility above 90% and has a plan to achieve 100% staff vaccination rate within 30 days would not be subject to enforcement action.

• Facilities with less than 100% staff vaccination rates may be cited but will be exempted from enforcement actions (e.g. CMPs) if they meet the following criteria:
  • January 27, 2022: Facility has more than 80% staff vaccination and a plan to achieve a 100% staff vaccination rate within 60 days
  • February 28, 2022: Facility has more than 90% vaccination rates and a plan to achieve a 100% staff vaccination rate within 30 days

How will compliance be determined?

Through the regular survey process, including standard and complaint visits. Facilities are expected to track vaccination status including booster status for each staff person, including any exemptions, using a tracking tool of their choice. Facilities’ tracking mechanism should clearly identify each staff’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 tool for facilities to use.

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

Facilities found out of compliance (less 100% 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.

On page 10-11 of the QSO memo, CMS provides detailed guidance on scope and severity and a scope and severity grid on page 14. 

Do unvaccinated staff need to follow any special precautions?

Yes, staff who are not yet fully vaccinated, or who have a pending or been granted an exemption, or who have a temporary delay as recommended by the CDC, must adhere to additional precautions that are intended to mitigate the spread of COVID-19. This includes, but is 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. Additional OSHA-required measures 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 is hosting a members-only webinar, OSHA’s Vaccine and Testing Mandate Now Applies to LTC on January 7, 2022 at 3:00 pm. Sarah Skubas, attorney with Jackson Lewis, will provide an analysis on how this rule interacts with the OSHA vaccine and testing rule. Registration is limited. The webinar will be recorded.

AHCA/NCAL will continue to evaluate this guidance for conflicts and seek clarity from CMS, OSHA, and other federal agencies. 

Additional Resources

Additional resources are available on the AHCA/NCAL COVID-19 website under the Vaccines section, including this Template: Follow-up to Medical Exemption Request.

Materials to help encourage vaccine uptake, including new handouts on boosters, can also be found on the #getvaccinated website.

• Vaccine Booster Template Letter For Consent – Staff
• Vaccine Booster Template Letter For Consent – Families