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Medicare to Move Cautiously on Nursing Home Vaccine Penalties

Aug. 25, 2021, 10:35 PM

The Biden administration is likely to implement a phased-in penalty process for nursing homes that don’t meet an upcoming federal requirement for staff to be vaccinated against Covid-19.

President Joe Biden moved last week to require that nursing homes vaccinate their entire staff to participate in the Medicaid and Medicare programs. Failure to comply could result in termination from both federal health programs, which collectively pay for roughly three out of four nursing home patients.

In a webinar and conference call with nursing home operators Wednesday, Jean Moody-Williams, deputy director of the Center for Clinical Standards and Quality at the Centers for Medicare & Medicaid Services, said program termination would be a worst-case scenario—not the first course of action for facilities that don’t meet the new requirement.

“Termination is not typically the first enforcement action that is taken,” Moody-Williams told participants on the call. “We usually use a progressive pattern of enforcement and remedies,” which includes notification of potential violations, civil monetary penalties, denial of payment “and ultimately removal from the Medicare and Medicaid program.”

“But again that is not where we generally go first,” Moody-Williams said.

Monica Schroeder, of the National Healthcare Safety Network at the Centers for Disease Control and Prevention, said nursing homes would be required this week to begin reporting the number of people eligible for a Covid booster shot, along with the number of people who had actually received a booster shot.

Rising Numbers of Cases

In the past week, facilities have seen about 3,000 new cases among residents and about 5,000 among nursing home staff, said Evan Shulman, director of the division of nursing homes at the CMS.

Those numbers have been rising across the country as the highly transmissible Delta variant continues to spread. Before the vaccines were introduced, the industry was reporting 18,000 to 20,000 new cases per week among residents and 17,000 to 20,000 new cases among staff, Shulman said.

In addition to increasing Covid cases, Shulman said nursing homes are also reporting more nonpandemic-related problems among residents, like weight loss, lack of mobility, and the need for assistance with daily living activities.

Nationally, about 60% of nursing home workers were vaccinated as of Aug. 12, federal data shows. State-level vaccination rates for nursing home staff range from a high of 88% in Hawaii to a low of 44% in Louisiana.

The new vaccine mandate will apply to more than 15,000 facilities and as many as 1.3 million industry workers, according to estimates by the Biden administration.

Nursing home operators fear the new requirement will cause some unvaccinated staffers to leave their jobs, which would exacerbate the industry’s ongoing staffing shortages. But Shulman said as more facilities and employers in all sectors require Covid vaccinations as a condition of employment, vaccine-hesitant nursing home staff will have fewer and fewer job options to turn to.

Providers had hoped to ask questions about the proposed rule, but the Administrative Procedures Act forbids government officials from discussing pending regulations while the rulemaking process is underway, Shulman said. That kept Shulman and others from the CMS and CDC from taking direct questions from participants. Shulman, however, said it was important to “at least get on the phone with you all and start to engage with you.”

Officials at CMS expect to hold another call with nursing home operators when the new regulations are released in late September, Moody-Williams said.

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com

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