LEADINGAGE KANSAS NEWS
Question and Answers About Citations for Non-Vaccinated Staff
We have received many emails this week asking about survey deficiencies related to whether non-vaccinated staff can care for residents. After an exhaustive search, here is what we found out:
Question 1: We have heard that employees who receive an exemption from the vaccine mandate are not allowed to provide resident care. Is this true?
Answer: This is not true. CMS does not state in the IFC or FAQs that vaccine exempted workers cannot provide resident care. They are allowed to do so as long as proper infection control is in use to protect residents and fellow staff from COVID-19 transmission. Furthermore, CMS requires facilities to have a staffing contingency plan for the mandate in the event that they experience staffing shortages or an emergency, and for many that will require the use of unvaccinated workers.
Question 2a: We have heard that if there is an outbreak in our building and surveyors find that we are using exempted workers for resident care we will get an IJ citation. Is this true?
Question 2b: We have heard that if an unvaccinated worker gives COVID-19 to a resident we will get an IJ. Is that true?
Answer: This question was sent to us by a large number of members, accompanied by references to statements made at an educational event, attributed to a care consultant, KDADS and a webinar from a law firm. We did our due diligence in tracking down sources, including posing the question directly to the survey and certification leaders in the CMS Region VII office. Here is what we found:
- We contacted Dawne Stevenson at KDADS to confirm whether they made statements at an educational event supporting the assertion that an outbreak combined with unvaccinated workers will lead to an IJ. Stevenson replied that the information did not come from them, but rather from a consultant who was also at the education event who in turn heard it in another meeting the consultant attended. Stevenson further replied that KDADS is still attempting to analyze all of the memos that have been released.
- We were sent a link to a webinar put on by Husch Blackwell attorneys on the new mandate rule, and this webinar is where the educational consultant said they got the statement that an outbreak combined with unvaccinated staff will lead to an IJ. We listened to a recording of the webinar and reviewed the presentation materials and found nothing to support this assertion. One attorney did refer to unvaccinated workers in a discussion of different factors CMS will look at when deciding an IJ scope and severity.
- We met with CMS Region VII survey and certification leaders on Thursday, November 18th and asked them directly whether facilities will receive IJ citations for an outbreak if unvaccinated workers are providing resident care. CMS staff confirmed what Husch Blackwell attorneys referenced in their webinar – unvaccinated status is one factor that can be considered. In our meeting CMS stated that it is a factor, but it is not determinative. CMS stated that when assigning an IJ surveyors look at the totality of the circumstances, and that the determinative factor is a serious breach of infection control standards, not vaccination status of the worker. CMS staff pointed out that in the case of a serious breach of infection control standards the actions of vaccinated staff will also be a factor in determining an IJ.
- During the November 18th meeting CMS survey and certification staff also stated that they have specific criteria and protocols that they must follow when determining scope and severity, and that did not change with the vaccine mandate rule. We hope this speaks to the remaining fear behind the question of whether an outbreak combined with unvaccinated staff will result in IJ citations. Part of that question seems to be the fear that surveyors will use the very fact that an outbreak occurred as evidence that infection control standards were violated and unvaccinated workers were to blame. However, that fear predates the vaccine mandate rule and so far has not come to fruition. Much earlier in the pandemic CMS started requiring surveyors to do infection control surveys any time an outbreak occurred in a nursing home. The fear at the time was that surveyors would use the simple existence of the outbreak as proof of infection control deficiencies. As far as we know this has not been the case, and that surveyors look for and cite actual infection control deficiencies they find rather than automatically assume standards were violated. At this point in time we have nothing that says those standards have changed.
Conclusion:
- Allowing exempted, unvaccinated workers to provide resident care is a factor that can increase the risk of an IJ citation, but it does not mean an automatic citation in the case of an outbreak. If an unvaccinated worker violates infection control standards and gives COVID-19 to a resident, could the facility receive an IJ citation? Yes. If a vaccinated worker violates infection control standards and gives COVID-19 to a resident, could the facility receive an IJ citation? Also yes.
- Having said that, allowing vaccine-exempt employees to continue caring for residents increases the likelihood of an outbreak or transmission and thus the likelihood of a survey citation. CMS has listed unvaccinated workers as a factor to consider in IJ assessment, putting providers on notice that the use of unvaccinated workers will get them heightened scrutiny. It is a true risk management concern. Each facility will need to determine their own risk tolerance when it comes to unvaccinated staff. The reality for most providers is that even if they want to follow the most conservative risk management path, staff shortages will force them to take survey risks in order to keep residents cared for and their doors open.
- No one actually knows how these policies will play out. All we can do right now is wait for surveyor guidance and updated FAQs and readjust accordingly.
Employee Retention Plan Updates
- We are partnering with KHCA on a proposal.
- The SPARK process continues to be on hold as they hire a new program manager. The hope is that the newly formed sub-committees will start meeting in early December.
Stay tuned for more information as it becomes available.
Here is the Recording for Today’s Webinar – No Friday Webinar Next Week
Listen to the recording. Download the handouts.
If you haven’t already done so, register here for upcoming calls through the end of the year.
Vaccine Mandate Toolkit – Updated Continuously
We are collecting tools and resources to help you comply with the new healthcare mandate. We will continue to add to the resources as we receive them. View the toolkit. You will need to have your LeadingAge Kansas website login credentials to view it.
LEGISLATIVE UPDATE
Kansas Legislature Unprecedented Special Session starts Monday, Nov 22nd
- 22rs2356 broadens medical and religious exemptions for COVID-19 vaccine; prohibits employers from inquiring into sincerity of religious beliefs; allows medical exemption if doctor says it will threaten health or life of employee or anyone who resides with the employee; creates right to sue employer for violating new exemption law
- 22rs2357 unemployment assistance for people who are denied a COVID-19 vaccine exemption or an accommodation for their exemption
LeadingAge Kansas submitted testimony. A follow-up letter to all legislators is going out today.
FEDERAL NEWS
CMS & CDC Stakeholder Call on New Visitation and Survey Guidance
CMS and CDC will host a Nursing Home Stakeholder call on Tuesday, November 23rd from 1:00 – 2:00 PM CT. The call will feature a discussion of recently released guidance (presumably visitation and survey memos) by subject matter experts (names not announced). Register here and you will be sent the information to join the call.
Provider Relief Fund (PRF) Reporting Period 1 ends November 30, 2021
The 60-day grace period for the Provider Relief Fund (PRF) Reporting Period 1 ends November 30th. Non-compliant providers still have time to complete their reporting requirements by submitting their report at the PRF Reporting Portal by November 30, 2021. Providers who fail to meet this deadline will be required to return their PRF payments by December 30, 2021. See HRSA’s new Returning Funds Fact Sheet to help with this process. Additional guidance can be found on the PRF Reporting Resources webpage.
Distribution of Phase 4 and ARP Rural Provider Relief Fund Payments Delayed
HRSA updated its PRF website today noting that it will not begin distributing Phase 4 and American Rescue Plan (ARP) Rural payments until December 2021 and distributions will continue through January 2022. This reflects about a one-month delay from their original goal, which was to begin ARP Rural distributions in late November. In addition, a bipartisan bill was introduced called the, “Provider Relief Fund Improvement Act.” The bill seeks to extend the deadlines for providers to spend any received PRF dollars and would expand the uses of the dollars to include investments in workplace & safety measures. The bill does not appropriate additional PRF dollars. For more details, see this article.
HUD Opens Registration for Innovations In Energy Efficiency Free Webinar Series
The series runs from November 29th – December 2nd. This 8-part webinar series will focus on energy efficiency in housing. Webinar topics range from an introduction to energy efficiency fundamentals to advanced topics such as exterior retrofits and the latest energy code requirements. The webinars are open to everyone, especially HUD grantees. Registrations must be submitted by Thursday, November 25th. More information here.
STATE NEWS
Hot Off the Press – KDHE Secretary Lee Norman Departure Announced
KDHE Deputy Secretary Ashley Goss will serve as Acting Secretary until a permanent candidate is appointed. Norman has served as the KDHE Secretary since Governor Laura Kelly took office in 2019. Under Norman’s leadership, KDHE has spearheaded Kansas’ response to COVID-19, including the state’s testing strategy, the deployment of the COVID-19 vaccine. More details here.
Governor’s Chief COVID-19 Response Coordinator, Marci Nielsen, Stepping Down
Nielsen has been Gov. Laura Kelly’s chief advisor for COVID-19 coordination since September 2020, tackling first testing and mitigation strategies, and, more recently, vaccination efforts.
LEADINGAGE NATIONAL NEWS
Next Week’s Online Coronavirus Policy Updates
Monday, November 22nd, 2:30 PM Central – In addition to the latest update by national staff, Tina Sandri, CEO of Forest Hills in Washington, DC, will talk about how her organization has been working to quickly implement the new CMS visitation guidance while planning for the holidays. She will also talk about her organization’s continuing efforts to educate on vaccination and its success with boosters. Please note: there will be no online update on Wednesday, November 24th. Register today.
LeadingAge November 17th Article: CMS Makes Sweeping Changes to COVID-19 Survey Activities and Increased Oversight in Nursing Homes
LeadingAge national plans to release a Quickcast on the new CMS visitation guidance and the memo on survey changes and oversight next week. Read the article. Stay tuned for more info.
“Wearing Masks, Regular Vaccine Boosters, and Other Precautions are Likely to Be Our New Normal.”
So said Dr. David Fairchild, Chief Medical Officer for MinuteClinic and Senior Vice President and Associate Chief Medical Officer for CVS Health, on the LeadingAge Coronavirus Update Call today. See this article for the whole interview, in which Dr. Fairchild talked about vaccines, hesitancy, boosters, and the safety of COVID vaccines for children.
New Resources: Opening Doors to Aging Services
Opening Doors to Aging Services, a LeadingAge initiative is now live, with a comprehensive research-based communications strategy available on a new website. This long-term, national-local initiative seeks to raise awareness and increase understanding of the aging services sector. OpeningDoors.org is a one-stop shop for members and others in the field to access the initiative’s assets. New online introductory sessions will roll out in December. Watch LeadingAge Need to Know for updates.
Incoming LeadingAge Board Chair Mike King Joins The Mentor’s Voice
LeadingAge’s podcast, The Mentor’s Voice, provides students and young professionals an opportunity to candidly learn from leaders in the field of aging. In the latest episode, LeadingAge’s incoming board chair, Mike King, CEO of Volunteers of America, shares his time and wisdom with Jonteja Vennings, a Master of Public Health student at Tulane University. Subscribe and follow The Mentor’s Voice wherever you listen to podcasts, and learn more about LeadingAge’s incoming board chair.
RESOURCES
Virtual Education Offered by LTC Ombudsman on Person-Centered Approach to Prepare for a COVID Emergency or Crisis Event, November 22nd and 24th
The 2-part training includes the steps to create a One Page Description (OPD) and specific health and medical related information to be used for a COVID Emergency of Crisis event. Participants will be provided with a blank OPD to complete before the second session in the series. The second presentation will be an informal process led by a facilitator to further explore the subject matter. The Kansas Long Term Care Ombudsman program reports that they will be doing more work with “one page descriptions” throughout this next year.
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