CMS continues to relax enforcement of COVID-19 vaccination requirements

CMS has revised its guidance to state survey agencies regarding assessment of healthcare provider compliance with COVID-19 vaccination requirements for staff.

The revisions seek to “ensure that deficiency citations recognize good-faith efforts” to comply, CMS stated in a memo issued Oct. 26. It’s the agency’s latest move to ease up on the requirements and follows a June statement that assessments would be conducted during initial and recertification surveys only when there had been complaints alleging noncompliance. That memo also established that surveyors should communicate with their CMS liaison if they intend to cite condition-level violations or violations categorized as causing immediate jeopardy or actual harm.

The latest changes clarify that many violations can be cited at the standard level, which means noncompliance with narrow regulatory standards. Examples of such violations in the context of the vaccination requirements include “less than 50% of staff being unvaccinated and/or one 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 wrote.

A condition-level violation is a more serious designation that indicates a breach of Medicare and Medicaid conditions of participation. The category should be used for violations of the vaccine mandate only in cases of “egregious noncompliance, such as a complete disregard for the requirements,” CMS wrote. Such a violation might be called for if more than half the staff is unvaccinated (excluding those with exemptions), for example.

Since February, when the mandate became effective in all states in the wake of the omicron surge and unsuccessful legal challenges by a handful of states, “Most providers and suppliers surveyed by states have been found to be in substantial compliance,” CMS wrote.

The memo adds that regardless of a facility’s compliance status, “Surveyors should closely investigate infection prevention and control practices to ensure proper practices are in use, 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.”

Of note, there has been no change to the definition of fully vaccinated, which continues to refer to staff who have received a single-dose vaccine or all required doses of a multi-dose vaccine, regardless of when they received their shots. No booster shot is required for an employee to be considered fully vaccinated.

Additional considerations and revisions apply to compliance scrutiny for skilled nursing facilities. See the memo for details.