Greetings!

This message includes:
  • information on the CMS and OSHA vaccine mandates;
  • a link to a 1:30 pm AHCA/NCAL member webinar on the mandates; and
  • an update on the revised LTSS Screening Manual posted by DMAS.

Sincerely,

April Payne, MBA, LNHA
Chief Quality & Regulatory Affairs Officer
Executive Director of VCAL
Virginia Health Care Association | Virginia Center for Assisted Living 
CMS and OSHA Release New Vaccine Mandates

On November 4, CMS published an interim final rule (IFR), with comment period, that revises the requirements that most Medicare- and Medicaid-certified providers must meet to participate in the Medicare and Medicaid programs. The Biden Administration is requiring covered​ health care workers to be vaccinated through this IFR released by CMS.

Particular items to note are:

  • ​The regulations are in a phased-in approach. Phase I implementation must be done by December 5, 2021. Phase II implementation must be done by January 5, 2022. Details of each phase are provided below. 

  • Phase I - Effective December 5, 2021 - Skilled Nursing Facilities, Nursing Facilities, and ICF-IIDs (note, while this does not apply to assisted living providers, the OSHA requirement (see below) does if they have 100 or more employees) must establish a policy ensuring that all eligible staff have received by December 5, 2021 the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services, or have requested or been granted exemption. 
  • ​Exemptions based on recognized medical conditions or religious beliefs, observances, or practices are included in the rule. 
  • Included staff are individuals who provide care, treatment, or other services for the facility and/or its patients:
  • ​​facility employees
  • licensed practitioners
  • students
  • trainees
  • volunteers
  • anyone under contract or other arrangement.
  • ​​Contractual or arranged workers may include hospice, dialysis, physical therapy, occupational therapy, mental health professionals, social workers, portable x-ray suppliers, etc., and are included in “staff” for whom COVID-19 vaccination is now required as a condition for continued provision of those services for the facility and/or its residents regardless of the frequency for which they enter the facility. 
  • An exception is made for 100 percent teleworkers as they are not included in the required staff vaccination. However, if they come into the facility at all, they are then included in the staff vaccination requirement. 
  • When determining whether to require COVID-19 vaccination of an individual who does not fall into the categories established by the IFR, facilities should consider frequency of presence, services provided, and proximity to patients and staff. 

​Facilities are required to track and securely document the vaccination status of each staff member, including those for whom there is a temporary delay in vaccination, such as recent receipt of monoclonal antibodies or convalescent plasma. Vaccine exemption requests and outcomes must also be documented. Documentation will be an ongoing process as new staff are onboarded. Examples of acceptable forms of proof of vaccination include:

  • ​​CDC COVID-19 vaccination record card (or legible photo of the card)
  • Documentation of vaccination from health care provider or electronic health record
  • State immunization information system record
  • If vaccinated outside of the U.S., an equivalent to previous examples is acceptable

  • Phase II - Effective January 5, 2022 - Requires that primary vaccination series has been completed and that staff are fully vaccinated, except staff who have been granted exemptions, or those whom COVID-19 vaccination must be temporarily delayed as recommended by the CDC due to clinical precautions and considerations. Staff who have completed the primary series for the vaccine by January 5, 2022, are considered to have met the requirements, even if they have not yet completed the 14-day waiting period required for full vaccination.

CMS makes clear that the IFR issued today does not apply to assisted living. Note: VHCA-VCAL has sent an inquiry to DSS to ask if the agency will be preparing guidance to ALFs on the vaccine mandate.

OSHA Mandate

The Occupational Safety and Health Administration (OSHA) released its vaccine requirement for employers with more than 100 employees (corporation-wide). It appears that this also does not apply to assisted living providers. OSHA specifically excludes the health care employers covered by this past summer’s emergency temporary standards (ETS), which did cover assisted living settings. It is likely that assisted living was unintentionally left out and the language will probably be changed at some point in the future to cover the health care settings not included in the CMS IFR. ​Additionally, today’s OSHA ETS does not apply to the SNF, NF, and ICF-IID providers that are covered under the CMS rule above. 

Highlights of today’s OSHA ETS include: 

  • By January 4, 2022, employers must ensure that their employees have completed their primary series of vaccination. 
  • ​If employees have not completed their primary series at that time, they will need to provide a verified weekly test to their employees on a weekly basis. If an employee tests positive on a COVID-19 test they must be removed from the workplace until it is safe for them to return. 
  • Employers are not required to cover the cost of this weekly testing. 
  • Those employees who are not vaccinated will also be required to wear a mask while in the workplace. 
  • ​By December 5, 2021, employers must provide employees paid time to get vaccinated and recover from any side effects. 
  • Employers are required to obtain proof of vaccination and maintain records of each employee’s vaccination status. ​

These CMS and OSHA rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

AHCA/NCAL will be submitting comments on the CMS IFR and encourages provider members to do so as well. 
AHCA/NCAL Member Webinar on
CMS and OSHA Vaccine Mandates

Today, November 5 at 1:30 pm, AHCA/NCAL’s CEO Mark Parkinson & Chief Medical Officer David Gifford, MD will host an all-member webinar to provide an overview of these vaccine mandate rules, who is impacted by which, and how to get started with implementation of either the CMS or the OSHA vaccine mandate.
It is strongly recommended to test your browser before the webinar to ensure your PC/Mac and network have the right components and open firewall ports required to receive the broadcast. Please be sure to take the test from the same computer and network (location) that you plan to be on during the day of the event. Registration is not required, but attendees are encouraged to login 15 minutes prior to the start of the webinar.
Revised LTSS Screening Manual Posted

DMAS posted the updated Screening Manual for Medicaid-Funded Long-Term Services and Supports (LTSS) on October 29 to the Provider Manuals Portal. The updated manual reflects the changes that went into effect in January which allow for trained skilled nursing facilities (SNFs) staff to conduct LTSS Screenings for non-Medicaid members admitted to SNFs who have a change in financial status and require intermediate care facility level of care. Much of the updated manual remains the same with regards to requirements for when an LTSS Screening is required and the exemption reasons.

The following updates were made:

  • Hospital Screening Teams are required to conduct a screening for all individuals who are Medicaid members, pending Medicaid members or persons likely to become financially eligible for Medicaid after admission to a nursing facility (NF). Hospitals shall not be required to initiate a screening for inpatients who are determined by the hospital team to be private pay individuals and are not anticipated to be financially eligible for Medicaid. However, anytime an inpatient or authorized representative requests a screening, a screening must be conducted.

  • Community-Based Teams are not required to perform a screening for individuals who are private pay or are not anticipated to be financially eligible for Medicaid. However, anytime an individual living in the community who is not already receiving Medicaid LTSS requests a screening, a screening must be conducted.

  • If a private pay individual (or person with 100 percent alternate forms of payment excluding Medicaid) is admitted for SNF services but later becomes Medicaid-eligible and needs LTSS, the NF will complete the Medicaid LTSS Screening per state guidelines. The NF LTSS screeners (including a registered nurse) and a NF physician must attest to their signature on the Medicaid LTSS authorization form regarding authorization or non-authorization for LTSS.

  • If a private pay individual (or person with 100 percent alternate forms of payment excluding Medicaid) chooses a NF for services and is admitted directly to an NF for LTSS but later becomes Medicaid eligible, the NF will complete the Minimum Data Set (MDS) assessment per federal guidelines and a NF physician will certify whether the individual meets the NF level of care criteria.

As a reminder, these changes went into effect on January 1, 2021, and all SNFs and NFs should have appropriate staff trained to complete the LTSS Screening when required for an individual who resides in a nursing facility. The training was outlined in an October 20, 2020 Medicaid Bulletin.
 
Additional Resources
 
How does this impact the Federal Preadmission Screening and Resident Review (PASRR)? 
Because the Preadmission Screening and Resident Review (PASRR) screening is coupled with the LTSS Screening for Virginia’s Medicaid program, the screening team responsible for conducting the PASRR screening prior to admission is determined by whether an individual being admitted to a nursing facility is required to have a LTSS Screening before admission.
 
If the hospital or community screening team conducts the LTSS screening, then that screener will conduct the PASRR screening, because it is part of the LTSS Screening. Those screeners are required to provide a copy of the of the screening to the nursing facility for review prior to admission.

  • A hospital screening team would conduct a screening for individuals with any type of existing Medicaid membership or for any individual requesting a LTSS Screening while in a hospital regardless of payor type.

  • A community screening team would conduct a screening for individuals in the community who have an existing Medicaid membership (including those individuals who have applied and are pending approval) or for any individual requesting a LTSS Screening while living in the community, regardless of payor type. 
 
If an LTSS Screening is not required, the NF screening teams are responsible for conducting the Level I screening and, if applicable, requesting and obtaining results from Ascend/Maximus for a Level II screening prior to admission to the nursing facility.
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