The Centers for Medicare & Medicaid Services (CMS) hosted a national nursing homes stakeholder call on November 23 to discuss the CMS vaccine mandate rule released November 5 and revised nursing home visitation guidance released November 12. Key provisions of the rule and guidance were reviewed and common questions were addressed.

CMS Vaccine Rule

CMS reviewed the key provisions of the rule that all staff in CMS-certified settings subject to Conditions of Participation, Requirements of Participation, or Conditions for Coverage must be fully vaccinated. Staff includes any individuals providing care, treatment, or services to or on behalf of the certified setting under contract or arrangement. Compliance is required over 2 phases. Phase 1, which includes most provisions of the rule, is due December 5, 2021. Phase 2 compliance is due January 4, 2022. Read the full text of the rule here, and check out the Frequently Asked Questions document released by CMS here.

CMS reiterated that staff must have at least one shot prior to providing care and those who are not fully vaccinated are subject to additional precautions until fully vaccinated. Additional precautions will be determined by the nursing home and may include but are not limited to testing, source control, and physical distancing. CMS did not clarify whether individuals who have not received one shot, specifically those who have been granted a medical or religious exemption, must be restricted from providing care.

New hires are also subject to provisions of the rule. CMS confirmed that staff hired after December 5 must have at least one shot prior to providing care and must meet applicable timelines for completing the primary vaccine series in accordance with the rule. CMS did not speak to vaccination requirements for new hires after phase 2 compliance on January 4. While new hires will be required to be fully vaccinated and must have at least one shot prior to providing care, it is unclear whether nursing homes may hire individuals after January 4 who have not completed a primary vaccine series at the time of hire. 

While some individuals may request exemptions for religious or medical reasons, CMS confirmed that the only medical conditions for which an individual may be granted a medical exemption are those recognized by the Centers for Disease Control & Prevention (CDC) as a contraindication to COVID-19 vaccination. At this time, those conditions are exclusively a severe allergic reaction to a previous COVID-19 vaccine or components of the vaccine. This information can be found here.

In addition to a medical or religious exemption, some individuals may be excepted from the rule, such as those who provide infrequent, ad hoc, non-healthcare services. CMS clarified that individuals providing medical transport or other transportation services for nursing homes and certified settings are subject to the rule. In this explanation, CMS included Emergency Medical Services (EMS) for non-urgent transportation or services. It appears, consistent with previous guidance related to screening of those entering the nursing home, EMS who are providing urgent / emergent services may be excepted from the rule.

CMS addressed the question of vaccination requirements for surveyors by confirming that guidance from CMS is forthcoming for vaccination of surveyors including federal surveyors, state survey agencies, and accrediting bodies; however, CMS did not detail what the guidance might include or whether these individuals will be subject to a vaccine mandate. CMS stated that until this guidance is released, requirements and protocols for these individuals will be directed by the state. Questions about the safety of a surveyor to enter the nursing home should be directed to the state survey agency.

LeadingAge has developed several resources to assist members in compliance with the CMS vaccine rule. Check out Vaccine Mandates: New CMS and OSHA Rules, a virtual update on the LeadingAge Learning Hub. This Frequently Asked Questions document explores questions received during the virtual update and through member communications. LeadingAge has also compiled these Resources on Vaccine Mandates and this 10 Processes Resource that outlines the processes providers are required to cover in policies and procedures. This COVID-19 Vaccine Policy for Employees template includes several of the required processes.

Visitation Guidance

CMS, along with CDC, reviewed the revised guidance for nursing home visitation updated most recently on November 12. Visitation is now permitted for all nursing homes residents at all times in accordance with 42 CFR §483.10 Resident Rights. CMS and CDC explained that successful vaccination of nursing home residents has greatly reduced the risks associated with transmission of COVID-19 from visitors to residents to the point that residents may now be afforded the choice of receiving visitors and assuming the associated risks. CMS and CDC cautioned that in order to maintain the freedom of this choice, residents and staff should do their parts to mitigate the spread of COVID-19, including following core principles of infection prevention and getting COVID-19 boosters as recommended.

CDC clarified that while fully vaccinated individuals in areas of low to moderate transmission will retain the option of removing source control during visits, at present, there are very few areas in the country that qualify as low to moderate community transmission. Therefore, the majority of nursing home residents and visitors, regardless of vaccination status, should continue to wear masks and practice physical distancing during visits.

CMS clarified that residents may choose to share meals with their visitors; however, CMS did not specify whether these shared meals need to take place in the resident’s room or a designated visiting space, or if a visitor is permitted to enter and eat in the dining room with a resident while practicing physical distancing from other residents and staff.

To assist members in implementing new visitation guidance, LeadingAge has developed this quickcast on the LeadingAge Learning Hub. A survey and oversight quickcast is also available on the Learning Hub to review recently released CMS guidance on how state survey agencies should address survey backlogs.