MDH, DHS, CMS Clarify, Add Detail to Vaccination Rules

Posted on November 11, 2021 by Jonathan Lips

State and federal regulators have added clarifying information to the conversation about how vaccine rules will be implemented and enforced in long-term care settings.

On its Nov. 10 long-term care COVID-19 call, the Minnesota Department of Health confirmed that the CMS requirements do not apply to assisted living settings, licensed-only group homes, or Home and Community-Based Services. MDH has not signaled an intention to create a state-level vaccination requirement.

As we have shared previously, CMS has stated that the rule does not apply to Home and Community-Based services providers, which provides a clear picture of where we stand today. However, we also asked the Minnesota Department of Human Services (DHS) if CMS had communicated anything to state Medicaid agencies about vaccination of employees of Home and Community-Based services providers that might be coming in the future.  DHS replied that CMS had not communicated anything to states about potential vaccine requirements for HCBS waiver providers. At this time, they are not aware of anything on the horizon about this.

CMS held a second national stakeholder call regarding the newly-issued rule on Nov. 10. We will provide a link to a recording of this call as soon as CMS posts it, but here are a few clarifying points made by CMS during the question and answer portion:

• How does CMS intend to address surveyor vaccinations? CMS recognizes the importance of ensuring that surveyors are themselves mitigating the risk of COVID-19.  CMS will develop additional guidance for federal, state and CMS-contracted surveyors commensurate with the regulatory expectations for healthcare staff in CMS-certified facilities.
• What specific types of accommodations should a facility provide to an unvaccinated staff member with an exemption? CMS encourages providers to review the EEOC website for additional information about situations that may warrant an exemption. CMS is leaving this in the hands of facilities, and that some examples "could include but are not limited to testing, physical distancing, source control, or assigning unvaccinated individuals to non-patient care areas with low risk whenever possible. CMS will allow a facility to develop a plan and process for providing exemptions and accommodations.
• Does the requirement apply to pharmacies that go on-site to a facility?  Yes, the vaccination requirement includes individuals that provide care or services to the facility or its residents under contract or other arrangements.
• Are EMS providers subject to the vaccine rule?  EMS providers are not directly subject to these requirements.  However, some EMS providers may be covered because of their relationship with a  CMS-regulated healthcare provider.  For example, a hospital may contract with EMS providers, in which case the CMS rule would apply to these staff.  Also, an EMS provider may provide non-emergency transport for long-term care facility residents under contract. In that case, EMS staff would be subject to the requirements as applied to long-term care facility staff.

On Nov. 9, LeadingAge CEO Katie Sloan sent a letter to CMS Administrator Chiquita Brooks-LaSure seeking answers to members' questions concerning the Interim Final Rule on vaccinations. Among the questions are:

• whether the rule applies to entire entities or just the CMS certified parts;
• the definition of "additional precautions" for unvaccinated staff;
• timing of contingency plans;
• requirements for new hires after Jan. 4;
• more clarity on medical exemptions;
• how to handle vaccinating staff under the age of 18 whose parents or guardians won't consent;
• types of contractors/services that might be eligible for an exception; and
• clarity on applicability to Medicaid home care services.