November 11, 2021
Vaccine FAQs Revisited: Which Vaccine Rules Applies to Your Setting?
On November 11, 2021 by Kari Everson
Alongside our members, LeadingAge Minnesota is working to answer questions regarding both the OSHA and CMS Vaccine and Testing Emergency Temporary Standards. We have shared answers each day as quickly as possible, but we would like to summarize some of the frequently asked questions we are getting from members across the state.
Does OSHA’s Vaccine and Testing Emergency Temporary Standard apply to assisted living settings with 100+ employees? It appears OSHA’s Vaccine & Testing ETS does not apply to those organizations subject to OSHA's Healthcare ETS requirements released in June. Assisted living providers are among the long-list providers subject to the June Healthcare ETS, which expires on Dec. 21. At that time, assisted living employers with 100+ employees may be subject to the Vaccine ETS once the June Healthcare ETS expires. LeadingAge Minnesota is seeking clarification from OSHA, MN OSHA and other agencies on this question and many others. We will continue to communicate updates to members as soon as possible. In the meantime, some organizations may choose to proactively plan for compliance with the Vaccine and Testing ETS in case assisted living settings are subject to it in the future.
Do SNFs have a choice between CMS and OSHA ETS? Nursing homes do not have a choice between the two. It is clear nursing homes must follow the CMS rule and do not have an option to adopt the OSHA ETS instead.
Does the CMS Rule apply to assisted living settings that receive Medicaid waiver payments like Elderly Waiver or CADI? Our understanding is that the CMS rule does not apply to assisted living facilities that accept Elderly Waiver or CADI. This is based on our review of the specific sections of federal regulation that CMS is amending under the rule, and on a CMS FAQ document stating that CMS does not have regulatory authority over assisted living, and that its regulations do not cover providers of Home and Community-Based services that receive Medicaid funding but are not regulated as certified facilities. 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. 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 has not communicated anything to states about potential vaccine requirements for HCBS waiver providers, and at this time they are not aware of anything on the horizon about this.
Does the CMS Rule apply to assisted living settings attached to a nursing home? At this time, we do not believe an assisted living setting attached to a nursing home will have to abide by the CMS rule where there are clearly delineated staff. However, staff who work in both settings will be subject to the CMS Rule. The LeadingAge national team has asked CMS to confirm how the rule applies when there are multiple service lines, and we will share with members any information we receive. There continues to be some question about whether being in the same space for a minimal amount of time, e.g., punching in by the timeclock, is enough to subject employees of the assisted living to the CMS rule. Currently, we do not believe so; however, we are continuing to reach out for clarification. If this changes, we will get information out to members as quickly as possible. In the meantime, it may be a good idea to consider separating break rooms until we’re able to receive clarification.
Does the CMS or OSHA ETS impact residents or their families? No, these rules have no impact on family visits and do not apply to residents. The vaccine rules apply only to employees and contractors working in our settings. Members should continue to follow visitation, screen, and testing guidance from MDH and CDC.
If you have questions, we invite you to reach out to either Jonathan Lips or Kari Everson, both staff members on the technical assistance team at LeadingAge Minnesota.