Hospitals left with questions on CMS' vaccination rule

Kelly Gooch -

The American Hospital Association penned a letter to CMS Jan. 4, asking for ongoing resources to ensure their programs are compliant with the agency's COVID-19 vaccination mandate.

The letter was sent a week after CMS released guidance for the 25 states where its mandate for healthcare workers is not currently blocked by legal challenges. The guidance, released Dec. 28 to state survey agency directors, outlines enforcement action thresholds related to assessing compliance at facilities participating in the Medicare and Medicaid programs.

In its letter, the American Hospital Association said it appreciates the guidance, particularly that CMS will push back implementation dates for compliance. CMS is now giving facilities until Jan. 27 (rather than Dec. 6, 2021) to establish policies mandating vaccines for healthcare workers and ensure that eligible staff have received at least one vaccine dose, have a pending request for an exemption, have been granted a qualifying exemption, or have been identified as needing a temporary delay as recommended by the CDC. Also, eligible staff have until Feb. 28 (instead of Jan. 4) to complete the vaccination series (one dose of Johnson & Johnson or two doses of Pfizer or Moderna), unless they have been granted an exemption or have been identified as needing a temporary delay as recommended by the CDC.

The American Hospital Association also said it is pleased CMS has indicated that it would exercise enforcement discretion for facilities covered by the mandate.

However, more can be done, the association noted.

For instance, in its letter, the group urged CMS to allow hospitals and health systems to submit questions and receive rapid feedback to ensure they are compliant with the mandate.

"Given the [mandate's] complexity and broad-sweeping implications, hospitals are eager to receive as many details as possible about how they can demonstrate compliance, along with how CMS intends to conduct enforcement. Even with the release of interpretive guidance, it is difficult for our membership to ensure they know how to meet the agency's expectations," the letter states. 

Additionally, the letter urges CMS to provide surveyors with in-depth education and training on the mandate "to ensure that compliance is assessed objectively and consistently across the provider field"; calls for enforcement flexibility in the event of unexpected vaccine supply shortages; and asks CMS to consider grandfathering already-established processes at facilities "that seek to achieve the agency's vaccination objectives."

The American Hospital Association also acknowledged that a pending U.S. Supreme Court decision about the mandate complicates things for hospitals. The nation's highest court on Jan. 7 is scheduled to rule on whether to lift a temporary injunction to the vaccination mandate in 25 states. The mandate is currently blocked in 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, Texas, Utah, West Virginia and Wyoming. The rule does currently apply to facilities participating in the Medicare and Medicaid programs in the remaining 25 states, Washington, D.C., and the U.S. territories.

"This puts hospitals and health systems in a difficult position, as some healthcare workers will be required to become vaccinated and others will not, based on where their employer is located," the association said.

If the U.S. Supreme Court lifts the injunction, the association called on CMS to provide facilities in the states where the mandate is currently blocked additional time to establish their policies and come into compliance.

"This approach would positively support hospitals' and health systems' vaccination efforts and bolster their progress in achieving compliance while helping to minimize any adverse impacts on care," the association added.

To read the full letter, click here

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