How do the CMS and OSHA rules apply to assisted living, adult day, and other HCBS providers?

We’ve heard this question from several members today. Assisted Living and Home and Community Based Services (HCBS) provider regulations are generally left to the states, and the State Medicaid Agencies must assure CMS that its provider qualification standards adequately protect the health and welfare of HCBS recipients.

The CMS COVID-19 Health Care Staff Vaccination Interim Final Rule FAQ document, therefore, indicates that the CMS vaccination rule “only applies to Medicare and Medicaid-certified facilities. CMS does not have regulatory authority over care settings such as Assisted Living Facilities or Group Homes.”

As the rule clearly applies to Medicare and Medicaid certified home health agencies, certain HCBS provider types required by their state to also be certified as a home health agency would be subject to the CMS Interim Final Rule. We’ve asked CMS if they will be considering vaccination requirements as necessary to protect the health and welfare of HCBS recipients as part of their review process for any outstanding or newly submitted Medicaid HCBS state plan or waiver actions; we will provide updates as we learn more.

Meanwhile, the OSHA Emergency Temporary Standard (ETS) on Vaccination and Testing, also issued today, explicitly does not cover healthcare settings that were subject to the prior OSHA Healthcare ETS, which was issued in June 2021. In that OSHA ETS, healthcare settings were required to comply with cleaning and infection protocols, barriers, and other workplace safety requirements. The OSHA Healthcare ETS did not, however, have any vaccination or testing requirements (absent return to work criteria) of healthcare employees.

Thus, it appears that assisted living providers and other HCBS providers that are still subject to the June 2021 OSHA Healthcare ETS are not subject to the new OSHA Vaccination and Testing ETS nor the CMS rule on vaccination. 

Moreover, as the FAQs from the OSHA Vaccination and Testing ETS note, this status may change once the June OSHA Healthcare ETS expires on December 21, 2021. HCBS providers may then be subject to the OSHA Vaccination and Testing ETS absent any new guidance from OSHA.

Here are two applicable questions from the OSHA FAQs on the Interim Final Rule:

• 2.J. Does the ETS apply to employees in settings covered by the Healthcare ETS (29 CFR 1910.502)?

No, the ETS does not apply to employees in settings covered by the Healthcare ETS while that ETS is in effect. Section 1910.502 was carefully tailored to the healthcare workplaces it covers and, given the full suite of protections it requires, OSHA has determined that it adequately protects the employees covered by its requirements from the grave danger posed by COVID-19. Therefore, complying with the additional requirements of this ETS is not necessary to protect those employees while they are covered by that standard’s protections. It will be necessary for employers with employees covered by section 1910.502 to determine if they also have employees covered by this ETS. For example, a retail pharmacy chain that operates a series of ambulatory care clinics embedded in its stores, where those embedded clinics are the only areas in the store that are covered under 1910.502 (see section 1910.502(a)(3)(i)), would have to ensure that the remainder of its employees in other parts of its stores are protected under this ETS if the company has 100 or more employees company-wide, including those covered under 1910.502. Note, however, that if the Healthcare ETS is no longer in effect at any point while this ETS is in effect, some employees working in settings covered under section 1910.502 may become covered by this ETS.

• 2.K. If an employer has employees who work in settings covered by the Healthcare ETS (29 CFR 1910.502), but who would otherwise be covered by the Vaccination and Testing ETS (29 CFR 1910.501) if the Healthcare ETS were not in effect, can that employer follow the Vaccination and Testing ETS instead for those employees?

No. Employers with employees in settings covered by the Healthcare ETS must follow the provisions of that standard for those employees while the Healthcare ETS is in effect. However, nothing in either ETS prevents those employers from also requiring vaccination of employees.

We will continue to monitor this issue and provide further guidance once it becomes available.

Link to a LeadingAge article on the OSHA ETS Interim Final Rule. 

Link to the OSHA Interim Final Rule FAQ.

Link to the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule FAQ.

Link to a LeadingAge article on the CMS Releases Vaccine Mandate Rule for All Certified Settings.