Nursing Home Vaccine Mandate FAQs

Regulation | August 25, 2021 | by Jodi Eyigor

The White House announced an initiative on August 18 to require long-term care workers in nursing homes to be vaccinated against COVID-19. CMS followed with an announcement of pending regulation, due in September. Information is scarce, and questions abound.

On August 18, the White House announced an initiative to increase vaccination rates in America that included mandatory vaccinations for long-term care workers in nursing homes. The Centers for Medicare & Medicaid Services (CMS) followed quickly with an announcement of forthcoming regulation mandating vaccinations for all staff working in nursing homes. The White House Fact Sheet is available here. The CMS Press Release is available here. A second announcement on September 9 outlined the Administration's plan for addressing the Delta variant, which could also impact nursing homes. Read more about the plan here.

LeadingAge immediately sprang into action following the initial announcement in August, advocating to the Administration, joining a coalition of other stakeholders to analyze and advocate on policy, and supporting members with the information available. Our letter to Domestic Policy Council Director Susan Rice, HHS Secretary Xavier Becerra, and CMS Administrator Chiquita Brooks-LaSure is available here.

Due to the rulemaking process, little is known at this time about the pending requirements. The Frequently Asked Questions curated below are based on feedback from members and will be updated as new information becomes available.

When will the rule come out? When will it be effective?

CMS initially said the rule would come out in late September. Now that the decision has been made to expand the vaccine mandate to other CMS-certified healthcare settings, this will delay the release of the rule. We are now told to expect the rule in October. At this time, we do not know what the effective date of the rule might be. CMS leaders indicated on a call with LeadingAge CEO Katie Smith Sloan that it would be an interim final rule, meaning that it will go outside of the notice-and-comment rulemaking process. CMS could make the rule effective immediately upon publishing in the federal register, or they could give a period of time before the rule is effective, such as 30 days from the date of publishing in the federal register.

Understanding the inherent length of time it takes for a person to be considered “fully vaccinated”, up to 42 days, we expect that there will be a phase-in time for compliance. For example, the rule may require that all staff have at least one dose of COVID-19 vaccine by a certain date, and that all staff are fully vaccinated by a second date sometime in the future.

By what date must nursing home staff be fully vaccinated?

As above, we do not know the answer to this yet. However, understanding that there is a pre-determined amount of time required for the process of becoming fully vaccinated, we anticipate that the rule will specify a date sometime beyond the effective date of the rule by which all staff must be fully vaccinated.

Who will be considered “staff” for purposes of this rule?

CMS stated on the national nursing home stakeholder call on August 25 that "staff" will include nursing home employees, licensed practitioners, adult students, trainees, and volunteers, and contracted personnel who provide treatment, care, or services in the nursing home under contract or arrangement. This defintion is consistent with the definiton of staff utilized in other pandemic-era nursing home rules issued by CMS.

We also now know there will be other mandate mechanisms in place. For example, CMS will be expanding the vaccine mandate to other CMS-certified settings. OSHA will be issuing an Emergency Temporary Standard to require vaccination in companies with more than 100 staff. These additional mandate mechanisms mean that a nursing home may have some support in ensuring that all individuals providing care and services in the nursing home are fully vaccinated.

Will visitors be impacted by the vaccine mandate or the additional mandates announced by the White House on September 9?

Under current requirements and guidance, nursing homes are permitted to ask the vaccination status of social visitors such as family and friends but may not restrict visitation based on vaccination status. There is no indication that CMS intends to change this guidance, even with the forthcoming vaccine mandate specific to nursing homes.

A related question we often receive is about surveyors. While surveyors would not be covered under the nursing home interim final rule, we are uncertain how the White House announcement on September 9 about additional mandates might impact this group. It is our understanding that a federal surveyor would be a federal employee and therefore subject to the federal government mandate. The question is whether a state survey agency would be considered a federal contractor, subject to the federal employee mandate, or whether a state survey agency would still fall under the category of "state employee" and therefore subject only to a state-level mandate.

Will there be any exemptions from this rule, such as medical exemptions or religious exemptions?

CMS has not provided details about exemptions; however, the U.S. Equal Employment Opportunity Commission (EEOC) has addressed this issue in its technical assistance guidance titled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (EEOC guidance). Under this guidance, the EEOC reminds employers that they may mandate vaccines in the workplace subject to the reasonable accommodation provisions in Title VII of the Civil Rights Act (Title VII) and the Americans with Disabilities Act (ADA). The EEOC notes that “in some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship for the operation of the employer’s business.”

How should nursing homes handle staff who decline vaccination, including those who decline for medical or religious reasons?

Although we await CMS guidance on how to handle staff that might request a reasonable accommodation to a vaccine mandate, the EEOC guidance identifies some good practices on how to address such requests and how to engage in an interactive process with employees. The EEOC guidance notes that the analysis and process to determine if the requested accommodation presents an undue hardship for the employer varies slightly based on whether the accommodation request is for a disability (under the ADA, see EEOC guidance K.5 and K.6) or for a religious reason (under Title VII, see EEOC guidance K.12).

What will happen to nursing homes that employ unvaccinated staff?

This is unclear. When word of this vaccine mandate first circulated, it was spoken of in the media as being directly tied to Medicare and Medicaid funding. There was speculation that failure to comply with the rule could result in termination of CMS-certification.

We have heard the requirement spoken as a Requirement of Participation (RoP), which we know typically carries with it the possibility of enforcement remedies for noncompliance including civil monetary penalties (CMPs), denials of payment for new admissions, denial of payment for all Medicare and Medicaid residents, and up to the termination of the provider agreement.

On the August 25 national nursing home stakeholder call, CMS stated that this requirement would follow the pattern of other requirements, with progressive enforcement remedies. They further clarified that termination of the provider agreement is not the first step in enforcement. However, we do not know what level of enforcement remedy this requirement will begin with or how enforcement will progress for patterns of non-compliance.

Will there be an option to “test out” in lieu of vaccination?

We don’t know. We note that some of the COVID-19 vaccination mandates coming out lately have allowed for individuals to be tested on a regular basis in lieu of vaccination. However, we also know that some such mandates have changed course. For example, initially, the mandate for federal workers allowed for a test-out option. However, the Administration's September 9 announcement seems to indicate that test-out will no longer be an option for these employees.

There has been no indication that testing out will be an option for nursing home workers. Nursing home staff have been testing on a regular basis since August 2020, and a revision earlier this year permitted for routine testing of unvaccinated staff only. Had testing been successful at preventing the spread of COVID-19 within nursing homes or had the exemption of vaccinated individuals from routine testing been successful at increasing vaccination rates, it is unlikely that the Biden Administration would have felt the need for this mandate.

How will the federal nursing home mandate work with a state mandate or a state ban on vaccine mandates?

This will be tricky. It will depend on how the rule is written and what the penalty for non-compliance will be. Typically, when there is a discrepancy between a state rule and the federal rule, the provider is advised to follow the more stringent of the 2 rules. We will also monitor how this federal mandate is tied to things like funding and certification. Your CMS certification and Medicare funding are federal and so could be impacted by the federal mandate. However, your nursing home and applicable staff are licensed or certified at the state level and could be impacted by state mandates or state bans on mandates. Additionally, if your organization or any of your staff are state entities, you may be subject to mandates specific to state employees or entitites. Providers will need to keep an eye on state mandates and professional licensing requirements in addition to the federal requirements. For more information on state mandates, check out this article.

What can providers do now?

While we don’t know the details of the pending requirement, there are things we can do now to prepare. First, work to identify which staff are unvaccinated. You’ll want to identify those who are employed by your organization, but don’t forget about those who work under contract, including agency staff, rehab therapists, dining services, hospice workers, and others who are providing care and services to your residents under arrangement.

Next, plan your education. You’ve likely been continuing education and targeted outreach since vaccines were first introduced during the winter, but much has changed since those early days. Take stock of what new information is available and what information might be most useful to those who are vaccine hesitant. It might be different than what was useful 6 months or even one month ago.

Enlist help. Reach out to your long-term care pharmacy partner, your LeadingAge state partner, local public health and others who might be able to assist you in educating staff, offering vaccination, verifying documentation, including documentation of exemptions or accommodations, and planning for staff retention rather than termination.