[co-author: Cristal Nova*]

As surges in various respiratory illnesses – including COVID-19 – loom over holiday gatherings, the Centers for Medicare & Medicaid Services (“CMS”) held an Open Door Forum for skilled nursing facility (“SNF”) providers addressing their obligations to offer/provide COVID-19 vaccinations, vaccination education and COVID-19 treatments, and gave providers the opportunity to bring up questions about obstacles they are facing in achieving compliance with the federal requirements.

Addressing Declines in COVID-19 Vaccination Rates and COVID-19 Treatment

During the Open Door Forum, CMS focused on the overall declining rates of resident COVID-19 vaccination and rates of staff with up-to-date COVID-19 vaccines and bivalent boosters, as reported by SNFs across the country through the National Healthcare Safety Network (“NHSN”). A pre-Thanksgiving analysis of this data revealed that just 45% of SNF residents and 23% of SNF staff were up-to-date with COVID-19 vaccines and boosters.[i]

In light of these general nationwide trends, CMS addressed the following during the Open Door Forum:

• Education for and Offering Vaccinations to Residents. SNFs have an ongoing requirement to educate on each offered dose of vaccination.[ii] CMS requires SNFs to provide a fact sheet and to educate residents and/or the resident’s representative about the benefits and potential common and rare side effects of the vaccine or bivalent boosters. Facilities are reminded that they must keep documentation tracking (i) the educational resources offered and (ii) whether the resident or their representative accepted or refused the vaccine.[iii] 

• Education for Staff Regarding Up-To-Date Vaccinations and Boosters. In 2021, COVID-19 immunization rates among nursing home staff quickly rose due to federal vaccine mandates for healthcare workers and long-term care facilities participating in the Federal Pharmacy Partnership for Long-Term Care Program.[iv] Given that this mandate does not require that staff receive additional boosters, CMS reminds SNFs that they must provide information to staff about the availability of COVID-19 vaccines and boosters, and that staff be provided with the opportunity to refuse or change their decision about the vaccine at any time. SNFs must also have processes in place for tracking and documenting the COVID-19 vaccination status of all staff not granted an exemption from the vaccination requirement and the status of staff who have obtained booster doses (among other documentation requirements). SNFs continue to be required to report vaccination data to the NHSN and state surveyors have authority to verify the accuracy of such reporting. CMS and the CDC are also conducting quality checks on facility data submissions.

• Timely Therapeutic Treatments. CMS also reminded attendees that SNFs must offer education to residents and their representatives about therapeutic treatments available to residents who test positive for COVID-19, as the timely use and initiation of therapeutic treatments (including monoclonal antibodies and oral antiviral drugs) can significantly improve symptom management and decrease the likelihood of hospitalization. CMS has, and continues to, implement initiatives and provide resources to promote the use of therapeutic treatments, as needed by nursing homes and residents. Under the Test to Treat initiative launched in March 2022,[v] SNFs were permitted to order oral antiviral drugs directly from pharmacies and, due to recent updates, are encouraged to maintain small stock piles of recommended treatments.[vi] During the Open Door Forum, CMS addressed questions about situations where community physicians are hesitant to prescribe COVID-19 antiviral medications. Facilities were reminded that CMS’ position is that, even when a patient’s symptoms do not initially present as severe, individual risk levels should be considered when deciding whether to prescribe an appropriate course of treatment.[vii] CMS also recommended that providers introduce timely therapeutic treatments to patients (i) with multiple pre-existing comorbidities and (ii) who live in community settings – such as SNFs – before their symptoms intensify. CMS promised forthcoming educational brochures and 1-2 minute podcasts in collaboration with the Food and Drug Administration and Centers for Disease Control and Prevention to address physician hesitancy regarding the prescription of antiviral drug treatments and other frequently asked questions.

Available Resources for Facilities

In addition to existing resources and guidance, CMS used the Open Door Forum as an opportunity to remind SNFs of Quality Improvement Organization (“QIO”) networks. QIO networks across the country bring SNFs on-site support and technical assistance needed to implement the educational and administrative requirements for COVID-19 vaccines and treatments. A QIO can provide educational materials for staff and providers, and can support vaccination uptake initiatives by assisting with:

• Setting up an on-site mobile clinic for vaccinations;
• Identifying supplies of vaccines nearby;
• Identifying licensed individuals to administer the vaccines;
• Connecting facilities that have successfully obtained and maintained vaccination rates with other facilities, thereby facilitating the exchange of best practices; and
• Providing technical assistance to ensure data accuracy and timely reporting.[viii]

CMS encourages facilities to connect to their QIO: Locate Your QIO.

FOOTNOTES

[i] Entering the Winter Season, How Many Nursing Facility Residents and Staff Were Up-To-Date With Their COVID-19 Vaccines? | KFF

The CDC defines an up-to-date vaccine status as “having received a bivalent booster or having received a final shot of the original vaccines less than 2 months ago.”

[ii] QSO-21-19-NH (cms.gov)

[iii] 42 CFR 483.10(c)(6). Note that residents have the right to refuse the COVID-19 vaccine and must be provided with the opportunity to refuse or change their decision about the vaccine at any time.

[iv] (DHHS – HC Staff Vaccination Requirement) – 2021-23831.pdf (federalregister.gov)

(CMS – Nursing Home Resident and Staff Vaccination Requirement) – Interim Final Rule – COVID-19 Vaccine Immunization Requirements for Residents and Staff | CMS

[v] Fact Sheet: COVID-19 Test to Treat (March 29, 2022) (hhs.gov)

[vi] https://aspr.hhs.gov/TestToTreat/Documents/Fact-Sheet.pdf

[vii] QSO-23-03-ALL (cms.gov)

[viii] Who We Help – Nursing Homes | qioprogram.org

*Cristal Nova is a law clerk in the firm's Century City office.