A trio of prominent health policy experts is calling on the Centers for Medicare & Medicaid Services to “tap the levers” of its regulatory powers and use the Rules of Participation to require frontline nursing home workers to get vaccinated against the coronavirus.

“Unvaccinated healthcare workers put patients at high risk, given that their jobs require close interaction with unvaccinated patients and others who are immunocompromised and at higher risk for complications,” wrote Jill Rosenthal, Emily Gee and Maura Calsyn of the Public Health Policy at the liberal-leaning Center for American Progress.

“Congregate settings, such as long-term care facilities, are particularly susceptible to the spread of infectious disease…. CMS should now update (the Rules of Participation) to mandate that healthcare and LTC staff and contractors, as well as healthcare providers with hospital privileges, are vaccinated against COVID-19.”

The Rules of Participation govern the operations of all U.S. nursing homes receiving Medicaid or Medicare payments in exchange for caring for beneficiaries. Those that violate the rules are subject to penalties, and repeated infractions can lead to loss of certification and removal from the federal system.

To update such rules, CMS normally uses a notice-and-comment rulemaking process, but the authors noted the agency can instead adopt changes by issuing interim final rules when it finds there is “good cause” and the traditional process is “impracticable, unnecessary, or contrary to the public interest.”

On Tuesday, the agency confirmed to McKnight’s Long-Term Care News its authority to quickly institute workplace requirements in the name of patient safety, but officials did not say whether they are considering a vaccine mandate.

“The agency remains dedicated to ensuring nursing home staff and residents have the information they need to improve vaccination rates,” a spokeswoman said, noting ongoing requirements to educate staff and residents about shots and report acceptance rates. “CMS has authority to establish requirements to ensure the health and safety of individuals receiving care from all providers and suppliers participating in the Medicare and Medicaid programs.”

As proof of its willingness to advance change through its rule-making process, CMS cited the way it waived a notice-and-comment period when it added vaccine education and offering requirements to its rules governing skilled nursing providers in May.

In their paper, Rosenthal, director of Public Health Policy at the Center for American Progress, and colleagues argued that the emergence of the delta variant and stalled vaccination rates “have created the need for action beyond staff education and vaccine access.”

“It is in the public interest to increase vaccination rates without delay, and mandatory vaccinations for healthcare workers are of critical importance in protecting patients’ health and safety,” they wrote. “CMS should also evaluate whether it can impose civil monetary penalties, set to increase over time, for noncompliant organizations.”

Other government officials are mandating

Several states in recent days have mandated vaccinations for nursing home workers, with Connecticut Gov. Ned Lamont (D) issuing an executive order that threatens operators with $20,000 per-day fines if their employees do not get vaccinated.

Likewise, federal and state agencies have begun to mandate vaccines for their own workers.

And officials in President Joe Biden’s administration are also reportedly studying whether they can withhold Medicare funding from facilities with low staff vaccinations rates. But CMS issuing a vaccine mandate would remove non-compliant providers from their system, effectively shutting down access to much needed patients and the dollars that follow them.

Caslyn, Gee and Rosenthal developed their insights about rule-making authority over long careers in government or with non-governmental organizations. Caslyn is a former Department of Health and Human Services attorney who was responsible for several Medicare programs. Gee was on staff with the Council for Economic Advisers during the Obama administration. Rosenthal previously spent more than 20 years with the National Academy for State Health Policy. 

They cited precedence for their call to force nursing homes into action through an ROP change: In 1965, federal officials required hospitals to desegregate to be eligible for Medicare reimbursement. More than 1,000 reluctant hospitals then integrated their staffs and hospital floors in less than four months.

“Importantly, (Rules of Participation) are national in scope, making them a powerful tool to effectuate change when there is local or regional reluctance,” the authors wrote. “In areas with low vaccination rates, employers — including healthcare and LTC employers — may be less likely to adopt mandates on their own. State and local officials who have been resistant to public health measures such as masking are unlikely ever to adopt vaccine requirements for all workers in healthcare…. A consistent, national policy is necessary to overcome employers’ perceived financial disincentive to mandate vaccination.” 

For its part, CMS said it “continues to analyze vaccination data for residents and staff from the CDC’s NHSN data.” That information, required to be reported weekly by all Medicare and Medicaid certified providers, showed 59.3% of nursing home staff were vaccinated per data submitted by July 25. 

Trends that emerge among individual nursing homes or regionally inform how federal officials can deploy additional vaccines or other resources, such as Quality Improvement Organizations, to assist nursing homes in encouraging vaccine uptake.