Effective May 21, 2021, both Medicare skilled nursing facilities (“SNFs”) and Medicaid nursing facilities (“NFs”) (collectively “nursing homes”) became subject to revised requirements of participation regarding infection control imposed by a new interim final rule, the “Medicare and Medicaid Programs; COVID-19 Vaccine Requirements for Long-Term Care (LTC) Facilities and Intermediate Care Facilities for Individuals With Intellectual Disabilities (ICF-IID) Residents, Clients, and Staff.”  This rule established vaccine immunization requirements for nursing home residents and staff.  Has your facility taken the steps necessary to ensure compliance?

The Centers for Medicare and Medicaid Services (“CMS”) issued this interim final rule with comment period on May 13, 2021.  It revised certain infection control requirements that nursing homes must meet in order to participate in the Medicare and Medicaid programs.  The purpose of the new rule is to reduce the spread of COVID-19 in nursing homes and protect those who are most at risk for infection.

Previously, CMS had issued two rules that revised nursing home requirements regarding COVID-19.  The first required nursing homes to report information related to COVID-19 cases among residents and staff.  The second rule addressed compliance with reporting requirements and added a requirement for nursing homes to test residents and staff for COVID-19.  The new interim final rule imposes additional requirements.

What is Required?

Nursing homes must develop and implement policies and procedures to:

• Educate residents or resident representatives and staff regarding the benefits, risks, and potential side effects associated with the COVID-19 vaccine;
• Offer the vaccine, when available, to residents and staff unless it is medically contraindicated or the individual has already been immunized; and
• Maintain appropriate documentation to reflect the provision of COVID-19 vaccine education and whether the resident and staff member received the vaccine.

Also, the rule added new reporting requirements for nursing homes to:

• Report the COVID-19 vaccination status for staff and residents, each dose of vaccine received, COVID-19 adverse events, and therapeutics administered to residents for treatment of COVID-19 to the Centers for Disease Control and Prevention’s (“CDC”) National Healthcare Safety Network (“NHSN”).

What Should You Do?

All nursing homes need to update and revise their policies and procedures to ensure compliance with the new infection control requirements of this new rule related to COVID-19 immunizations.  In addition, facilities must ensure that education and vaccine administration information is documented in resident and staff records.  According to CMS guidance, CMS will begin reviewing and monitoring for compliance with these new vaccine reporting requirements on June 14, 2021.  Also, surveyors will be using the data nursing homes report to determine and identify those facilities that need to have focused infection control surveys.

Facilities should consult with counsel for a detailed review of this new rule, to resolve questions, and to discuss its specific requirements.