The Centers for Medicare & Medicaid Services (“CMS”) has armed surveyors with detailed instructions on how to survey skilled nursing facilities for compliance with the CMS staff vaccine requirements. On January 27, 2022, CMS issued updates to the Long-Term Care Survey Process Procedure Guide effective January 27, 2022 (the “Surveyor Guide”).
Also on January 27, 2022, a skilled nursing provider in the first group of states were to: (a) have policies and procedures in place to ensure that all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and (b) have 100% of staff have either: (1) received at least one dose of COVID-19 vaccine, (2) a pending request for a qualifying exemption, (3) been granted a qualifying exemption, or (4) are identified as having a temporary delay as recommended by the CDC due to clinical precautions and considerations, including, but not limited to, individuals with acute illness secondary to COVID-19, or individuals who received monoclonal antibodies or convalescent plasma for COVID-19 treatment in the last 90 days.
Nursing homes face possible citations, civil monetary penalties, denial of payments and—as a final measure—termination of participation from the Medicare and Medicaid programs by the CMS as they embark on complying with the new CMS COVID-19 vaccine requirements for their staff.
The updated surveyor guidance updates include:
National Healthcare Safety Network Data Review
The Surveyor Guide makes the review of National Healthcare Safety Network (“NHSN”) data mandatory to prepare to review the staff data onsite.
Information Needed within Four Hours of Entrance
CMS updated the Entrance Conference Worksheet to call for skilled nursing facilities to provide additional documents within four hours of the entrance, specifically:
- Numbered list of resident cases of confirmed COVID-19 over the last four weeks prior to the survey and indicate whether any resident cases resulted in hospitalization or death.
- Policies and procedures related to the skilled nursing facility’s COVID-19 staff vaccination policies and procedures.
- COVID-19 Staff Vaccination Matrix.
COVID-19 Staff Vaccination Matrix
CMS has created a COVID-19 Staff Vaccination Matrix to gather data on staff vaccine status at the time of the survey.
- The COVID-19 Staff Vaccination Matrix asks for: (a) the total number of staff; (b) number of partially vaccinated staff; (c) number of completely vaccinated staff; (d) number of staff with pending exemptions; (e) number of granted exemption: (f) number of temporary delay/new hires; and (g) number of staff not vaccinated without exemption/delay. The skilled nursing facility should complete the COVID-19 Staff Vaccination Matrix within four hours.
- The COVID-19 Staff Vaccination Matrix also asks (a) is the staff person a direct-hire or a contracted hire; (b) title of staff; (c) position of staff; and (c) assigned work area of staff.
- For direct facility hires, the form defines them as employees who are directly hired by the facility and defines contracted hires as those who provide care, treatment, or other services for the facility and/or its residents under contract or by other arrangements.
- For assigned work area, the COVID-19 Staff Vaccination Matrix wants to know the physical location in the facility (e.g., laundry room, kitchen, unit, ward, wing) and if the staff is PRN/floater/agency, indicate their assigned work area on the first day of the survey.
- The surveyor’s Entrance Conference Worksheet update includes COVID-19 Vaccine review and COVID-19 Staff Vaccination Matrix.
Staff Interviews
- New actions include that the infection control surveyor will conduct a review of the infection prevention and control program, policies and procedures for staff COVID-19 vaccination, antibiotic stewardship program, and influenza, pneumococcal and COVID-19 for residents and staff.
- The infection control surveyor will also sample five residents for influenza, pneumococcal and COVID-19 immunizations.
- Surveyors will review the COVID-19 Staff Vaccination Matrix provided by the facility on site. Calculate the percentage of the current staff who have received vaccinations. Surveyor will also compare the facility’s data with NHSN data.
- Surveyors will also review the COVID-19 Staff Vaccination Matrix and select eight staff to review for COVID-19 vaccinations according to the guidelines below:
- Two vaccinated staff (at least one Certified Nurse Aide/CNA and one contractor who provides services, such as hospice and dialysis staff, occupational therapists, mental health professionals, licensed practitioners).
- Six unvaccinated staff, if available
- Three unvaccinated staff (two CNAs, if available) without exemption or reason for the temporary delay;
- One non-medical exemption;
- One medical exemption (Note: If there are two or more staff with medical exemptions, select 50% of the staff from this category); and
- One whose primary vaccine series has been temporarily delayed.
The sample size will not change if staff in a category do not exist. If surveyors identify any staff that were not vaccinated and were not granted an exemption or temporary delay (and were not listed on the COVID-19 Staff Vaccination Matrix), that individual(s) should be added to the staff sample.
Next Actions
- Skilled nursing facilities should promptly practice completing the COVID-19 Staff Vaccination Matrix.
- Skilled nursing facilities should also ensure their policies and procedures accurately reflect the process for requesting a vaccination exemption.
- Facilities should not lose track of the reporting, testing and education requirements introduced in regulations earlier in the public health emergency, as this data is reviewed by surveyors ahead of a survey.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com; or
- Your regular Hall Render attorney.
More information about Hall Render’s Post-Acute and Long-Term Care services can be found here.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
