Cropped image of nurse injecting Covid-19 Vaccine to a patient.

The Centers for Medicare & Medicaid Services on Tuesday issued surveyor guidance on assessing long-term care facilities’ compliance with a federal mandate for healthcare worker COVID-19 vaccinations.

The guidance only applies in 25 states where a federal judge earlier this month lifted a temporary injunction that had blocked the Nov. 5 vaccination rule from taking effect.

The guidance shows CMS officials’ continued commitment to the rule, which is headed to the Supreme Court for oral arguments on Jan. 7. The rule’s final compliance date was originally set for Jan. 4, meaning all healthcare workers in Medicare- or Medicaid-funded nursing homes were required to have completed a COVID-19 vaccine regimen.

In its Dec. 28 memo, CMS said surveyors would begin enforcement within 30 days. Among key details: Any facility with a staff vaccination rate at that time above 80% with a specific plan to achieve a 100% rate within 60 days would not be subject to additional enforcement action. At the 60-day mark, a facility above 90% with a plan to achieve a 100% staff vaccination rate within an additional 30 days would not be subject to additional enforcement action.

“CMS expects all providers’ and suppliers’ staff to have received the appropriate number of doses by the timeframes specified in the (original rule) unless exempted as required by law, or delayed as recommended by CDC,” the agency wrote. “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.”

CMS said facilities would be considered compliant if policies and procedures are developed and implemented for ensuring all staff are vaccinated for COVID-19; and 100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC.

The agency said anything less than at least one shot for 100% of staff (not counting a pending or granted exemption or CDC-recommended temporary delay) would count as non-compliant.

Those facilities will receive notice of their non-compliance with the 100% standard, but CMS said those in the 80% to 99% range would receive some relief if they continue to pursue vaccination plans.

“States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety,” the agency added. “Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.). 

The guidance in this memorandum does not apply to 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.

CMS explicitly stated that surveyors should not attempt to enforce the staff vaccination rule in those states, all of which are involved in litigation that arrives at the Supreme Court for a hearing on Jan. 7. It’s unclear how soon the court will rule on the CMS mandate and a similar Labor Department rule for businesses with 100 or more employees.

Some 17 million healthcare workers at more than 77,000 Medicare and Medicaid providers fall under the CMS conditions. While the nationwide staff vaccination rate has approached 80 through December, nine states still had under 70% of workers fully vaccinated as of data collected through Dec. 12.