CMS Issues Revised Staff Vaccination Guidance

​On Oct. 26, the Centers for Medicare & Medicaid Services (CMS) issued revised guidance on COVID-19 vaccination requirements for staff working for Medicare-certified and Medicaid-certified providers and suppliers. While the revised guidance was issued in separate provider-specific attachments, the guidance generally allows for more flexible staff vaccination requirements and enforcement due to relatively low COVID-19 hospitalizations and deaths nationwide.

For long-term care and skilled nursing facility staff, CMS loosened the language around the 100 percent staff vaccination requirement, and CMS now defines noncompliance as staff vaccination rates under 100 percent of unexcepted staff, whereas the guidance previously did not distinguish unexcepted staff from the vaccination requirement.

The term "unexcepted staff" excludes those who have been granted exemptions from the COVID-19 vaccine or those for whom the COVID-19 vaccination must be temporarily delayed, as recommended by the CDC. This updated definition of noncompliance for long-term care and skilled nursing facilities now brings the staff vaccination requirements in line with those of other types of facilities, such as ambulatory surgery centers, hospitals, and hospice facilities.

Enforcement

In addition, the revised guidance provides for a more relaxed enforcement scheme with the scope and severity of citations now influenced by good-faith efforts made to correct noncompliance. The severity and scope levels range from Level 1, described as "no actual harm with potential for minimal harm," to the most severe level, Level 4, described as "immediate jeopardy, noncompliance resulting in serious harm or death" or "noncompliance resulting in a likelihood for serious harm or death."

The guidance allows for enforcement flexibility where there are good-faith efforts made to correct noncompliance, and it states that noncompliant facilities that have implemented a plan to achieve a 100 percent staff vaccination rate would not be subject to an enforcement action. On the other hand, the guidance states egregious noncompliance, described as more than 50 percent of staff being unvaccinated, should be cited at the harsher severity Level 2, which represents "no actual harm with potential for more than minimal harm that is not immediate jeopardy."

Jasmine Becerra is an attorney with King & Spalding in Atlanta. © 2022. All rights reserved. Reprinted with permission.