On Nov. 4, the Centers for Medicare and Medicaid Services (CMS) published an interim final rule (IFR), with comment period, that revises the requirements that most Medicare- and Medicaid-certified providers must meet to participate in the Medicare and Medicaid programs. The Biden Administration is requiring covered health care workers to be vaccinated through this IFR. The requirements will be phased in via two phases.

• Phase I - Effective Dec. 5, 2021 - Skilled Nursing Facilities, Nursing Facilities, and ICF-IIDs (CMS notes that this does not apply to assisted living providers) must establish a policy ensuring that all eligible staff have received by Dec. 5, 2021, the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services, or have requested or been granted an exemption.

• Phase II - Effective Jan. 4, 2022 - Requires that primary vaccination series has been completed and that staff are fully vaccinated, except staff who have been granted exemptions, or those whom COVID-19 vaccination must be temporarily delayed as recommended by the Centers for Disease Control and Prevention due to clinical precautions and considerations.

Staff who have completed the primary series for the vaccine by Jan. 4, 2022, are considered to have met the requirements, even if they have not yet completed the 14-day waiting period required for full vaccination.

CMS makes clear that the IFR issued today does not apply to assisted living.

The Occupational Safety and Health Administration (OSHA) released its vaccine requirement for employers with more than 100 employees (corporation-wide). It appears that this also does not apply to assisted living providers.

OSHA specifically excludes the health care employers covered by this past summer’s emergency temporary standards (ETS), which did cover assisted living settings. It is likely that assisted living was unintentionally left out and the language will probably be changed at some point in the future to cover the health care settings not included in the CMS IFR.

Additionally, the Nov. 4 OSHA ETS do not apply to the SNF, NF, and ICF-IID providers that are covered under the CMS rule above.

Highlights of the OSHA ETS include:

• By Jan. 4, 2022, employers must ensure that their employees have completed their primary series of vaccination.
o If employees have not completed their primary series at that time, they will need to provide a verified weekly test to their employees. If employee test positive on a COVID-19 test, they must be removed from the workplace until it is safe for them to return.
o Employers are not required to cover the cost of this weekly testing.
o Those employees who are not vaccinated will also be required to wear a mask while in the workplace.

• By Dec. 5, 2021, employers must provide employees paid time to get vaccinated and recover from any side effects.

• Employers are required to obtain proof of vaccination and maintain records of each employee’s vaccination status.

These CMS and OSHA rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

The American Health Care Association and National Center for Assisted Living issued statements on the two rules upon their release. The association is offering a webinar for member providers on Friday, Nov. 5, at 1:30 p.m. Eastern, to provide an overview of the new policies.