The article below is a top story from this week's ACTION newsletter—Care Providers of Minnesota's weekly newsletter for members. The newsletter focuses on current legislative issues, regulations, long-term care trends, and other Association news. Each Thursday evening, it is delivered to your inbox. To sign up for ACTION, contact Lisa Foss Olson (952-851-2483). To learn more about membership, visit our Become a Member page.

 


Review of Supreme Court decision implications


Patti Cullen
By Patti Cullen, CAE  |  January 21, 2022  | All members



Last Thursday, the Supreme Court of the United States (SCOTUS) stayed the preliminary injunctions against enforcement of the Centers for Medicare & Medicaid Services (CMS) interim final rule, meaning that CMS can enforce its Vaccine Mandate in states previously exempted due to the stay, with the exception of Texas.

On Friday, CMS released a QSO memo that applies to providers in the 24 states that were not subject to the original QSO—the interim final rule applies now to all states with the exception of Texas. NOTE:  this latest QSO does not apply to Minnesota as we were one of the 25 states who were set to go ahead because our state had not taken any legal action. 

On Friday, we sent a separate email on this topic of the dates that DO apply to us as follows:

Here is how this will impact members

Skilled Nursing Facilities/Nursing Facilities/Medicare Certified Home Care and Medicare Certified Hospice:
The CMS mandate goes ahead as published in their QSO QSO-22-07-ALL, clarified in their FAQ External FAQ IFC-6 Guidance Memo 12 28 21 226 (508 Compliant). This means these dates are still in place:

January 27, 2022: Deadline for the first dose, which includes the following:
  • Policies and procedures developed and implemented
  • 100% of staff having received one dose of vaccine, except those with or pending exemption request and those having a temporary delay recommended by CDC
  • A facility above 80% and has a plan to achieve 100% staff vaccination rate within 60 days would not be subject to enforcement action

February 28, 2022: Deadline for the second dose, which includes the following:
  • Policies and procedures developed and implemented (should be done at the 30-day mark)
  • 100% of staff having completed the vaccine series, except those with granted exemption request and those having a temporary delay recommended by CDC
  • A facility above 90% and has a plan to achieve 100% staff vaccination rate within 30 days would not be subject to enforcement action

March 30, 2022: Facilities failing to maintain compliance with the 100% standard may be subject to enforcement action. Federal, state, Accreditation Organization, and CMS-contracted surveyors will begin surveying for compliance with these requirements as part of initial certification, standard recertification or reaccreditation, and complaint surveys beginning January 27, 2022. Citations will be issued based on this document: QSO-22-07 ALL Long-Term Care and Skilled Nursing Facility 

Assisted living and non-Medicare-certified home care
Assisted living facilities are NOT federally certified so the above vaccine mandate for your staff will NOT apply to you; nor does it apply to state-licensed only home care.  

In an order issued January 13, 2022, the United States Supreme Court stayed enforcement of federal OSHA's COVID-19 vaccination and testing ETS pending the disposition of the petitions for review in the Court of Appeals for the Sixth Circuit. In light of the stay, MN-OSHA will suspend enforcement of the ETS pending future developments. So, as of today, there are no staff vaccination mandates scheduled to take effect for assisted living.

Accommodations for exempted/unvaccinated nursing facility workers
CMS did include language in their QSO nursing facility “Attachment A” on what facilities may need to consider as accommodations for staff who are not fully vaccinated:

§483.80(i)(3)(iii): Requires facilities to ensure those staff who are not yet fully vaccinated, or who have a pending or been granted an exemption, or who have a temporary delay as recommended by the CDC, adhere to additional precautions that are intended to mitigate the spread of COVID-19. There are a variety of actions or job modifications a facility can implement to potentially reduce the risk of COVID-19 transmission including, but not limited to the following
  • Reassigning staff who have not completed their primary vaccination series to non-patient care areas, to duties that can be performed remotely (i.e., telework), or to duties which limit exposure to those most at risk (e.g., assigning to residents who are not immunocompromised, unvaccinated)
  • Requiring staff who have not completed their primary vaccination series to follow additional CDC-recommended precautions, such as adhering to universal source control and physical distancing measures in areas that are restricted from patient access (e.g., staff meeting rooms, kitchen)
  • Requiring at least weekly testing for exempted staff, and staff who have not completed their primary vaccination series for until the regulatory requirement is met
  • Requiring staff who have not completed their primary vaccination series to use a NIOSH-approved N95 or equivalent or higher-level respirator for source control, regardless of whether they are providing direct care to or otherwise interacting with patients

Note, these are all examples of accommodations—not all have to be adopted. CMS further says: 

An example of an accommodation for an unvaccinated employee with a qualifying exemption could include mandatory routine COVID-19 testing in accordance with OSHA and CDC guidelines, physical distancing from co-workers and patients, re-assignment or modification of duties, teleworking, or a combination of these actions. Accommodations can be addressed in the facility’s policies and procedures. 




Patti Cullen, CAE  |  President/CEO  |   pcullen@careproviders.org  |  952-851-2487




 



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