Medicare Compliance & Reimbursement

Caution: Stay on top of policy changes to ensure compliance.

Background: On Nov. 5, 2021, CMS published an interim final rule with comment period requiring COVID-19 vaccine immunization of staff for Medicare- and Medicaid-certified providers and suppliers, the agency notes in the new memo (QSO-23-02-ALL) released Oct. 26. After some legal challenges, the mandate took effect early this year.

“To date, most providers and suppliers surveyed by states have been found to be in substantial compliance with this requirement,” notes the National Association for Home Care & Hospice (NAHC) in its member newsletter.

Now, “CMS is revising its guidance and survey procedures for all provider types related to assessing and maintaining compliance with the staff vaccination regulatory requirements,” the agency says in the memo.

What’s different: “While the new guidance from CMS continues to identify a less than 100 percent vaccinated staff or lack of even one vaccination-related policy as ‘noncompliance,’ surveyors are instructed to look for egregious noncompliance and absence of ‘good faith’ efforts to comply before citing a condition-level finding, the type of which would trigger the need for a plan of correction and follow-up survey activity,” explains attorney Sandra DiVarco with law firm McDermott Will & Emery in Chicago.

Examples of egregious noncompliance could include “a complete disregard for the requirements” and “more than 50 percent of staff being unvaccinated (unless exempted, or temporarily delayed), and/or policies and procedures have not been implemented as required,” CMS indicates in the memo. “When there are egregious cases of noncompliance, state survey agencies should notify the CMS location of the information,” CMS instructs.

Important: “Termination for noncompliance with the requirements will only occur after a facility is given an opportunity to come into compliance,” points out the National Hospice and Palliative Care Organization (NHPCO) in a regulatory alert about the new guidance.

Under the revised policy, “surveyors for all covered provider types are … pointed toward a more holistic approach that considers, regardless of staff vaccination compliance, a facility’s ‘infection prevention and control practices … such as proper use of personal protective equipment, transmission precautions which reflect current standards of practice, and/ or other relevant infection prevention and control practices that are designed to minimize transmission of COVID-19,’” DiVarco notes in online analysis of the new memo.

In contrast, prior guidance “included a much more stringent approach, and over time, in conjunction with state healthcare vaccination mandates, was sometimes identified as one of the bases for covered providers’ decisions to terminate unvaccinated staff … to avoid threats to their provider agreements due to noncompliance,” DiVarco adds.

Now, “examples of when noncompliance should be cited at the standard level could include less than 50 percent of staff being unvaccinated and/or 1 or more of the policies and procedures have not been implemented as required, but good faith efforts are being made toward compliance with the staff vaccine requirements,” CMS offers in the memo.

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