An inspector working with a nursing home administrator
Credit: Luis Alvarez/Getty Images Plus

The Centers for Medicare & Medicaid Services Wednesday sternly warned state survey agencies they must enforce all aspects of the federal programs’ health and safety requirements.

The notice does not cite the ongoing pandemic or the federal COVID-19 vaccine mandate that applies to all Medicare- and Medicaid-supported healthcare facilities. But the memo is widely believed to be directed toward Florida and other states that have indicated they would not enforce mandate requirements.

The message targeted any state that “unilaterally acts to reduce or suspend survey and certification activities.” One industry observer said it is a clear warning that local efforts to evade enforcement won’t save providers from the federal rule.

 In the memo, the agency threatens reductions in federal financial support budgeted for the survey process. It also vows to bring in outside surveyors to provide oversight if needed.

“States that fail to perform survey and certification functions in a manner sufficient to assure the CMS of the full certification of compliance with all Conditions of Participation, Conditions for Coverage, and Requirements for Participation for providers and suppliers, may, among other things, receive a revised Survey and Certification budgetary allocation,” CMS notified state survey agency directors. 

“These funds would be used by CMS to support federal oversight alternatives in the state (including contractor support) to safeguard the health and safety of those receiving care from Medicare and Medicaid certified providers and suppliers.”

More than 15,000 U.S. nursing homes are covered by the federal vaccine mandate, but it was broadly challenged and at one time paused nationwide. Under updated guidance, providers in 25 states could be surveyed for staff vaccination compliance starting Jan. 27.

By Feb. 14, providers in another 24 states must be able to show they have adopted policies that require employee vaccinations or exemptions and that they are actively working to increase vaccine coverage. The rule goes into effect in Texas, the final state, beginning Feb. 22. 

‘Whispers’ of more states pushing back

Florida is in the first batch of states. After the Supreme Court cleared the way for the mandate to proceed, Florida Gov. Ron DeSantis’ (R) pledged that his state would not enforce the regulation by having surveyors check for compliance.

Last week, Republicans in New Hampshire introduced legislation to stop the mandate from being enforced for employees of the state’s county-owned nursing homes and the state hospital.

They’re not alone.

“We are starting to hear about states who have either publicly stated or are whispering behind closed doors that they’re not going to be enforcing the CMS vaccine mandate for providers,” Jodi Eyigor, LeadingAge director of nursing home quality and policy told providers on a coronavirus update call Wednesday afternoon. “If that is the case in your state, hear me very clearly: This will not keep you safe.”

Eyigor noted that the requirement that state survey agencies monitor for compliance with the “full extent of the requirements” could be a reference to the vaccine mandate. But she said it could also serve as a nudge to states that have fallen woefully behind in inspections due to the pandemic and staffing-related challenges. 

In either case, CMS was clear that failure to enforce all requirements in a given state could risk program participation and payment for providers there, as could failure to comply with the vaccine rule itself. 

“The Medicare and Medicaid certification of providers and suppliers in a State whose oversight process is substantially deficient may be jeopardized if CMS cannot ensure that the regulatory minimum health and safety standards have been met,” the agency said.

Full vaccination in the first batch of states is required by Feb. 28 and by March 15 in the next 24.