03/10/2022

You Asked... We Answered

You Asked: 

Will a facility be cited if they are above the 90% threshold of staff vaccination but has a plan to achieve a 100% staff vaccination rate within 30 days of the March 15 phase two deadline?

We Answered: 

Yes, facilities are required to be in 100% compliance with the mandate. The 80% and 90% thresholds address the level of enforcement but do not prevent the citation. The rule notes that if 100% of staff have not received the necessary doses to complete the vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple vaccine series) or have not been granted a qualifying exemption, or are not identified as having a temporary delay as recommended by the CDC, the facility is non-compliant under the rule. 

The specific language and surveyor guidance under the vaccination enforcement language states:

CMS expects all facilities’ staff to have received the appropriate number of doses by the timeframes specified in the memorandum unless exempted as required by law. Facility staff vaccination rates under 100% constitute non-compliance under the rule. Non-compliance does not necessarily lead to termination, and facilities will generally be given opportunities to return to compliance.

Within 30 days after the issuance of the memorandum, if a facility demonstrates:

• Policies and procedures are developed and implemented for ensuring all facility staff, regardless of clinical responsibility or resident contact are vaccinated for COVID-19, including all required components of the policies and procedures specified below (e.g., related to tracking staff vaccinations, documenting medical and religious exemptions, etc.); and
• 100% of staff have received at least one dose of COVID-19 vaccine or have a pending request for, or have been granted a qualifying exemption, or are identified as having a temporary delay as recommended by the CDC, the facility is compliant under the rule.
• Less than 100% of all staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption, or are identified as having a temporary delay as recommended by the CDC, the facility is non-compliant under the rule. The facility will receive notice of their non-compliance with the 100% standard. A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to an enforcement action. States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Within 60 days after the issuance of the memorandum if a facility demonstrates:

• Policies and procedures are developed and implemented for ensuring all facility staff, regardless of clinical responsibility or resident contact are vaccinated for COVID-19, including all required components of the policies and procedures specified below (e.g., related to tracking staff vaccinations, documenting medical and religious exemptions, etc.); and
• 100% of staff have received the necessary doses to complete the vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple vaccine series) or have been granted a qualifying exemption, or are identified as having a temporary delay as recommended by the CDC, the facility is compliant under the rule.
• Less than 100% of all staff have received at least one dose of a single-dose vaccine, or all doses of a multiple vaccine series, or have been granted a qualifying exemption, or are identified as having a temporary delay as recommended by the CDC, the facility is non-compliant under the rule. The facility will receive notice of their non-compliance with the 100% standard. A facility that is above 90% and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to an enforcement action. States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Within 90 days and thereafter following issuance of the memorandum, facilities failing to maintain compliance with the 100% standard may be subject to enforcement action.

CMS provides examples of these scenarios in the CMS Long-Term Care Surveyor Training found on the QSEP training webpage. We encourage members to continue to submit questions to COVID19@leadingageohio.org.