CMS Posts Vaccine Order Guidance for Surveyors

On December 28, 2021, CMS posted a memorandum to State Survey Agency Directors, providing guidance and survey procedures for assessing and maintaining compliance with the vaccine mandate regulatory requirements. The memo can be read at:

Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (QSO-22-07-ALL)

Enforcement remedies for home health and hospice agencies include civil monetary penalties, payment denials and – as a final measure- termination of participation in Medicare and Medicaid programs.

State, Federal, Accreditation, and CMS-contracted surveyors will begin surveying for compliance as part of initial certification, recertification, reaccreditation, and complaint surveys beginning on January 27, 2022 (30 days after issuance of the memo). Facilities failing to maintain compliance with the 100% standard may be subject to enforcement action within 90 days of the memo. 

The memo includes attachments for provider-specific expectations and guidance. Links to those for hospice and home health follow:

• Hospice
• Home Health

US Sets Shorter COVID-19 Isolation Rules for Healthcare Workers

Modern Healthcare

Worried that a new COVID-19 wave could overwhelm understaffed U.S. hospitals, federal officials loosened rules that call on healthcare workers to stay out of work for 10 days if they test positive.
 
Those workers now will be allowed to come back to work after seven days if they test negative and don't have symptoms. Isolation time can be cut to five days, or even fewer, if there are severe staffing shortages, according to the new Centers for Disease Control and Prevention guidance.
 
"As the healthcare community prepares for an anticipated surge in patients due to omicron, CDC is updating our recommendations to reflect what we know about infection and exposure in the context of vaccination and booster doses," CDC Director Rochelle Walensky said in a statement.
 
"Our goal is to keep healthcare personnel and patients safe, and to address and prevent undue burden on our healthcare facilities," she added.
 
Isolation is designed to keep infected people away from uninfected people, to prevent further spread of the virus.
 
CDC officials have advised that in calculating the 10-day isolation period, the first day should be the first full day after symptoms first developed or after a positive test. If a person develops symptoms sometime after a positive COVID-19 test, the quarantine period must restart, beginning one day after the symptoms develop.

OSHA Withdraws Most Provisions of the Healthcare ETS

From the National Association for Home Care and Hospice

On June 21, 2021, OSHA adopted a Healthcare Emergency Temporary Standard (Healthcare ETS) protecting workers from COVID-19 in settings where they provide healthcare or healthcare support services. 86 FR 32376. Under the OSH Act, an ETS is effective until superseded by a permanent standard – a process contemplated by the OSH Act to occur within 6 months of the ETS’s promulgation. 29 U.S.C. 655(c).

OSHA announces today that it intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rule making. However, given that OSHA anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act, OSHA also announces today that it is withdrawing the non-record keeping portions of the healthcare ETS. The COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect. These provisions were adopted under a separate provision of the OSH Act, section 8, and OSHA found good cause to forgo notice and comment in light of the grave danger presented by the pandemic. See 86 FR 32559.

With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them. Given these facts, and given OSHA’s anticipated finalization of this rule, OSHA strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.

As OSHA works towards a permanent regulatory solution, OSHA will vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect healthcare employees from the hazard of COVID-19. The Respiratory Protection Standard applies to personnel providing care to persons who are suspected or confirmed to have COVID-19. OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards. Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.

OSHA believes the terms of the Healthcare ETS remain relevant in general duty cases in that they show that COVID-19 poses a hazard in the healthcare industry and that there are feasible means of abating the hazard. OSHA plans to publish a notice in the Federal Register to implement this announcement.

It is unclear what OSHA’s expectations are for providers in relation to its Vaccination and Testing ETS if healthcare providers continue to follow the provisions of the OSHA Healthcare ETS. The National Association for Home Care & Hospice will continue to follow the developments closely and provide updates as we learn more.    

Supreme Court Sets Jan. 7 Special Hearing on Vaccine Mandate for Healthcare Workers

Fierce Healthcare
 
The Supreme Court is fast-tracking two legal cases challenging President Joe Biden's COVID-19 vaccine mandates, including a requirement for certain healthcare workers.
 
The high court announced Wednesday it will hold a special hearing Jan. 7 to hear oral arguments over federal vaccine mandates that are at the heart of the Biden administration’s efforts to address COVID in the workplace.
 
The Supreme Court's decision comes as the omicron variant is causing COVID-19 cases to surge nationwide.
 
In an unusual move, the court said it would move with exceptional speed on the two measures, a vaccine-or-testing mandate aimed at large employers and a vaccination requirement for certain healthcare workers, The New York Times reported Wednesday. The justices had not been scheduled to return to the bench until the following Monday.
 
The high court will hear arguments over a rule issued by the Occupational Safety and Health Administration (OSHA) that applies to employers with 100 or more workers and requires they have all staff vaccinated or tested for the virus weekly. The rule could affect more than 84 million workers.
 
The second is a rule released by the Centers for Medicare & Medicaid Services (CMS) in November that requires hospitals, ambulatory surgery centers, nursing homes and other healthcare facilities to ensure staff are fully vaccinated by Jan. 4 or risk losing Medicare and Medicaid funding.
 
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