Nursing Homes | March 31, 2022

Second Booster Not Required for Compliance

BY Jodi Eyigor

The Food and Drug Administration (FDA) approved a second COVID-19 booster dose for adults over age 50 and immunocompromised individuals on March 29, 2022. Moving quickly, the Centers for Disease Control & Prevention (CDC) recommended the second booster on the same day. Read the FDA press release here and the CDC press release here. This triggered several questions about how the new recommendation impacts nursing home requirements. In short, nursing home requirements are largely unaffected by the new recommendation. Read on to learn why.

COVID-19 Staff Vaccination Mandate

The COVID-19 staff vaccination mandate requires that all staff in a healthcare setting be fully vaccinated against COVID-19. Even when CDC updated language around vaccination to “up to date / not up to date”, this did not change the vaccine mandate. This is because the vaccine mandate is a federal regulation. In order to change the requirement, CMS would have to actually change the requirement in the Code of Federal Regulation. While CMS strongly encourages staff to receive any booster shots for which they are eligible and requires the tracking and secure documentation of any boosters received by staff, staff are only required to complete a primary series of COVID-19 vaccination in order to be compliant with the CMS vaccine mandate.

Routine Staff Testing Requirements

Interim final rule CMS-3401-IFC issued in August 2020 requires nursing homes to conduct COVID-19 testing on parameters set forth by the Secretary of Health and Human Services (HHS). This includes the routine testing of asymptomatic staff. The testing frequency is determined based on the community transmission rate of the county in which the nursing home is located. On March 10, 2022, CMS revised guidance to include all staff who are not up to date with COVID-19 vaccination in routine staff testing, consistent with CDC recommendations.

At this time, “up to date” means that an individual has completed a primary series of COVID-19 vaccination and received one booster dose when eligible. As such, nursing homes are not required to include in routine staff testing those staff who have received one booster dose, regardless of whether they are eligible for a second booster dose. Read more about what it means to be up to date with COVID-19 vaccination here.

Resident Quarantine Requirements

CDC recommends that residents who are not up to date with COVID-19 vaccination quarantine following admission or readmission to the nursing home, including residents who were outside the nursing home for more than 24 hours. Additionally, CDC recommends quarantine of residents who are not up to date with COVID-19 vaccination and have been identified as a close contact of an individual with COVID-19 infection.

Because, at this time, “up to date” means that an individual has completed a primary series of COVID-19 vaccination and received one booster dose when eligible, nursing homes are not required to quarantine residents who have received at least one booster dose, regardless of whether they are eligible for a second booster dose. Read more about what it means to be up to date with COVID-19 vaccination here.

What to Consider

While the new recommendation does not significantly impact requirements such as the vaccine mandate or requirements around testing or quarantine, recall that nursing homes are required to provide education and offer COVID-19 vaccination to residents and staff. Presumably, this would extend to booster doses. Therefore, nursing homes should continue to educate on the benefits of receiving all recommended doses of COVID-19 vaccination and to assist eligible residents and staff in accessing COVID-19 vaccination, including a second booster dose should they choose to receive one.