01.18.2022

COVID-19 UPDATES IMPACTING HOME HEALTH AND HOSPICE AGENCIES:

Extension of the Federal Public Health Emergency and Vaccine Mandates for Healthcare Providers

There have been several key updates late last week on the federal COVID-19 pandemic response which directly impact home health and hospice providers, and home based care providers who receive funding from Medicare or Medicaid. These updates also have important regulatory and survey implications for providers.

EXTENSION OF THE PUBLIC HEALTH EMERGENCY

On Friday, January 14, 2022, the Secretary of Health and Human Services has formally extended the COVID-19 Public Health Emergency (PHE) for an additional 90 days, beginning on January 16, 2022. The PHE has been in effect since January 27, 2020, nationwide. This means that the COVID-related CMS flexibilities (1135 Waivers) will remain available for at least the next 3 months. More information about the extension declaration can be found here.

Home Health and Hospice providers are reminded to review the current federal COVID-19 Emergency Declaration waivers, as well as any state-specific waivers or requirements and ensure policies, procedures, and documentation reflect implementation of applicable waivers. Providers should also ensure that there is a timeline of waiver/policy implementation incorporated into the agency’s Emergency/Pandemic Planning and COVID-19 Response documentation to ensure a clear relationship between the waivers/requirements, staff training and evidence of documentation.

The COVID-19 Emergency Declaration Blanket Waivers for Healthcare Provided (updated 11/29/21) can be found here.

COVID-19 CMS VACCINE MANDATE UPHELD BY US SUPREME COURT: Connecting the Dots for Home Health and Hospice Agencies

On January 13, 2022, the US Supreme Court upheld the CMS healthcare worker mandate by court majority (5-4) and found that CMS had clear authority to require measures, including vaccines, to protect patients and regulate provider staff qualifications as presented in an interim final rule with comment period (IFC) on November 05, 2021. This rule establishes requirements regarding COVID-19 vaccine immunization of staff among Medicare- and Medicaid-certified providers and suppliers. The IFC can be found here.

Following this decision, CMS issued a new QSO memo dated 1/14/22: Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination Memo # QSO-22-09-ALL that provides additional guidance and survey procedures for assessing and maintaining compliance with these regulatory requirements specifically for the following states that were previously included in the injunction pending the US Supreme Court Decision: 

  • Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming. 
  • The guidance in this memorandum does not apply to the State of Texas at this time. Surveyors in Texas have been instructed not undertake any efforts to implement or enforce the Interim Final Rule. 
  • States that are not identified above are expected to continue under the timeframes and parameters identified in the December 28, 2021 memorandum (QSO-22-07-ALL) as outlined below.

A link to this QSO Memo may be found here.

On December 28, 2021 CMS Center for Clinical Standards and Quality/Quality, Safety & Oversight Group released QSO-22-07-ALL which outlines guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination. In this document, CMS provides guidance and survey procedures for assessing and maintaining compliance with these regulatory requirements. Note that the compliance exemption for all states except Texas was overturned in QSO memo dated 1/14/22: Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination Memo # QSO-22-09-ALL.

CMS’ established enforcement remedies for home health agencies and hospice includes civil monetary penalties, denial of payments, and, as a final measure, termination of participation from the Medicare and Medicaid programs. However, CMS’s primary goal is to bring health care facilities into compliance.

CMS expects all providers’ and suppliers’ staff to have received the appropriate number of doses by the timeframes specified in the QSO-22-07 unless exempted as required by law or delayed as recommended by CDC. Facility staff vaccination rates under 100% constitute noncompliance under the rule. Non-compliance does not necessarily lead to termination, and facilities will generally be given opportunities to return to compliance. The guidance outlines surveyor directives for 30-day, 60-day, and 90-day periods of non-compliance as of the date of the memorandum.

The link to the Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination QSO-22-07-ALL can be found here.

Additional provider specific guidance can be found at the links below. CMS has outlined survey guidance and enforcement, including Immediate Jeopardy, for providers that demonstrate noncompliance with the vaccine mandates. Deadlines for compliance are that applicable staff at all covered health care employers must receive the first dose of a COVID-19 vaccine (or the single dose Johnson & Johnson vaccine) by January 27, 2022. Additionally, applicable staff must receive their second dose of a COVID-19 vaccine by February 28, 2022.

Attachment C: Hospice- VIEW

Attachment G: Home Health Agencies- VIEW

U.S. Equal Employment Opportunity Commission (EEOC) COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws outlining workplace anti-discrimination laws: VIEW

WHAT THIS MEANS FOR HOME HEALTH AND HOSPICE PROVIDERS:

Home Health and Hospice providers impacted by this mandate must ensure evidence of compliance with these requirements, including employee and contractor vaccine tracking. Surveyors in all states will continue to place a priority on assessing compliance with an organizations Infection Surveillance, Prevention and Control, Emergency/Pandemic Planning and COVID-19 response in both the agency office locations and patient homes/facilities. This includes, but is not limited to screening/testing, staff and patient/family training, staffing and care planning/visit frequency, use of telehealth, and compliance with all state/federal mandates and current CDC/OSHA guidance.

SimiTree’s Compliance, Regulatory and Quality Team has the expertise needed to help guide your agency through these regulatory changes and plan for survey enforcement in these areas. Our industry best-in-class survey/regulatory team, comprised of current, former and certified surveyors is here to assist you in facilitating compliance with all of your organizations state, federal and accreditation survey needs.

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