Skilled Nursing Facilities Vaccine Mandate

November 11, 2021

Last week there were two new rules issued by the Biden administration regarding vaccine mandates. The Center for Medicare and Medicaid Services (CMS) released an interim final rule (IFR), along with the Emergency Temporary Standards released by the Occupational Safety and Health Administration (OSHA).

Providers Involved:

Ambulatory Surgical Centers
Hospice Agencies
Psychiatric Resident Treatment Facilities
Programs of All-Inclusive Care for the Elderly
Acute-Care Hospitals
Long-Term Care Facilities
Intermediate Care Facilities
Home Health Agencies
Comprehensive Outpatient Rehabilitation Facilities
Critical Access Hospitals
Outpatient Rehab Facilities
Community Mental Health Centers
Home Infusion Therapy Suppliers
Rural Health Clinics
End Stage Renal Disease Facilities

Neither CMS nor the OSHA mandate appears to apply to assisted living facilities at this time. But the American Health Care Association (AHCA) stated that this was an oversight and should be corrected soon.

CMS vs OSHA Rule

CMS’s rule is more stringent stating that all providers listed above must vaccinate all employees, regardless of employer size, and does not provide an option for weekly testing. This interim rule is likely to go into effect as proposed with a shorter comment period and no formal response needed to commenters.

The OSHA rule included most employers with 100 or more employees and includes a weekly testing exemption for unvaccinated employees with the same deadline as the CMS rule. These weekly tests can require the employee to pay for the test.

Both rules include exemptions for medical contraindication and religious beliefs.

CMS Rule Implementation

CMS’s interim rule went into effect November 5, 2021, and will be implemented in two phases.

Phase I – Deadline is December 5, 2021, is for all eligible staff to have at least one dose of the vaccine.
Phase II – Deadline is January 4, 2022, at this point you should have all your staff fully vaccinated.

Define Fully Vaccinated

CMS defines fully vaccinated as one dose of the Johnson & Johnson vaccination, or both doses of Moderna or Pfizer vaccinations. At this point, the boosters are not included in fully vaccinated status.

Enforcement

The CMS will issue explanatory guidelines this will include citations and additional actions for facilities who do not comply with the vaccine mandate.

Policies and Procedures

Providers must also develop policies and procedures that include, how they are ensuring staff are vaccinated, paid leave for vaccination and recovery, documentation and tracking, establishing an exemption process and a contingency plan for dealing with unvaccinated staff.

Employees Covered/ Not Covered

Employees covered in this rule are any staff who provided any care, treatment of services for other staff, or patients.

This includes:

Housekeeping
Activities
Licensed Practitioners
Students
Trainees
Volunteers
Corporate Consultants that come to your building

This does not include:

Staff working 100% remote
Staff that work exclusively outside the facility and do not come into contact with staff or patients
Staff with the following exceptions
- Medically recognized contraindicated conditions
- Religious beliefs and practices