Cory Kallheim, Vice President of Legal Affairs and Social Accountability for LeadingAge, joined the Nursing Home Advisory Group call on November 30, 2021 to discuss the new CMS vaccine mandate rule. Mr. Kallheim provided insight on current legal challenges to the rule and discussed considerations for medical and religious exemptions to the rule.

CMS Vaccine Mandate Rule

Cory Kallheim, LeadingAge’s Vice President of Legal Affairs and Social Accountability, spoke to members on legal challenges to the CMS Vaccine Mandate rule and considerations for managing exemptions to the rule. At the time of this discussion, a decision out of Missouri on November 29 had already placed a temporary injunction on the CMS vaccine mandate rule for 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. On December 1, a ruling out of Louisiana enjoined and restrained CMS from implementing the rule in all remaining states nationwide not already covered by the Missouri decision.

Despite the temporary stay of the CMS rule, Mr. Kallheim noted that nursing home providers are not prohibited from implementing vaccine mandates consistent with individual nursing home policies. When considering exemption requests, providers may refer to guidance from the Equal Employment Opportunity Commission (EEOC). Nursing homes should ensure that they are following a process in considering exemption requests and that the process treats all staff and requests equally.

LeadingAge encourages members to continue efforts to vaccinate staff and residents, including offering COVID-19 boosters as appropriate. Efforts to increase vaccine acceptance among residents and staff and continued adherence to core principles of COVID-19 infection prevention, including additional precautions for individuals who are not fully vaccinated, will benefit the residents living in member communities and the staff serving them.

Policy Updates

Nursing Home Visitation Guidance CMS updated nursing home visitation guidance on November 12 to state that visitation is now permitted for all residents at all times, including during outbreak and for residents on transmission-based precautions. The guidance also stated that nursing homes should no longer be limiting the number of visitors per resident, frequency of visits, or length of visits, and nursing homes can no longer require scheduling for visits. Nursing homes must continue to practice core principles of COVID-19 infection prevention and ensure adherence to the core principles by residents and visitors.

Access the revised CMS memo here. Read the LeadingAge analysis of the guidance here. LeadingAge has also developed a resource to help nursing home providers implement the new guidance. This resource can be accessed here on the LeadingAge Learning Hub.

Survey Activity and Oversight CMS released a memo on November 12 directing state survey agencies how to proceed with survey activity in order to address backlogs of standard recertification and complaint surveys. CMS will no longer require focused infection control surveys based on outbreaks, though state survey agencies may initiate these surveys if there are concerns. State survey agencies will still be required to survey at least 20% of nursing homes in the state per fiscal year on infection control.

Standard recertification surveys should resume normal survey intervals and CMS has directed that complaints, including facility-reported incidents, be investigated according to the triaged level of concern. While complaints and incidents triaged at immediate jeopardy (IJ) or non-IJ high should continue to be investigated as soon as possible, those triaged at non-IJ medium may be investigated on the next standard survey. Complaints and incidents triaged at non-IJ low may be closed without on-site investigation. The memo also directs state survey agencies to increase oversight of nursing homes in particular areas of interest including nurse competency, antipsychotic usage, and other areas where residents’ health and safety may be at risk such as weight loss, loss of functioning, depression, abuse and neglect, or pressure ulcers.

Access the CMS memo here. Read the LeadingAge analysis of guidance here. LeadingAge has also developed a resource to assist nursing home providers in preparing for surveys under the new guidance. This resource can be access here on the LeadingAge Learning Hub.

Build Back Better Act The Build Back Better Act passed the House in mid-November and is now in the Senate, where it will likely undergo changes that would send it back to the House. While some provisions of the bill would benefit LeadingAge members in other areas of the aging services continuum, nursing home provisions related to 24/7 registered nurse requirements and a nurse staffing study are cause for concern. LeadingAge recommends 3 strategies to address these concerns including funding any mandates, funding a staffing study and developing workforce support, or deferring both provisions to a larger, funded, nursing home modernization and reform bill. Read more on these concerns and strategies to address the concerning provisions here.

CDC Strike Teams The John A. Hartford Foundation continues to host webinars for state health departments and other stakeholders regarding use of the $500 million American Rescue Plan Act funds that were allocated to state health departments in October 2021 for the Nursing Home and Long-Term Care Facility Strike Team and Infrastructure Project. The webinar series can be accessed here. Additional information about the project is available here.

LeadingAge Annual Meeting Call for Sessions LeadingAge Annual Meeting 2022 will take place in Denver, Colorado October 16 – 19, 2022. The deadline to submit a session proposal is December 6, 2021. More information on submission guidelines and how to submit is available here.

Member Feedback

Member discussion focused on implementation of the COVID-19 vaccine mandate rule. Members shared concerns about and strategies for implementing requirements for documenting vaccination status of all staff. Documenting vaccination status of contract staff has proven challenging. Members pointed out that a nursing home may utilize the services of many individual contract staff. Provider agreements with the contract organization may include provisions to supply the nursing homes with only full-vaccinated staff; however, nursing homes may be unable to collect documentation for each individual contract staff member.

Members also shared concerns about how to ensure adequate levels of staffing should staff choose not to comply with vaccine mandates. Confusion remains about how to manage these individuals, as well as what types of services exempted individuals may provide.

Despite the temporary injunctions placed on the rule November 29 and December 1, LeadingAge will continue to work with members to solicit feedback for submitting comments to the federal register.

The LeadingAge Nursing Home Advisory Group call takes place on the last Tuesday of every month. If you are a LeadingAge nursing home member and would like to join this group, please email Jodi Eyigor jeyigor@leadingage.org. Our next monthly call will take place Tuesday, December 28 at 2pm ET.