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The Covid-19 vaccine mandate: Here's what's in CMS' new rule

By Heather BellCarol Boston-Fleischhauer

November 5, 2021

    On Thursday, CMS issued an interim final rule requiring most health care facilities that participate in Medicare and Medicaid programs to have their staff fully vaccinated against Covid-19 by January 4, 2022.

    CMS said it is issuing the public rule to protect both the public and the health care workforce. In the rule, CMS said illnesses and deaths related to Covid-19 are exacerbating staffing shortages across the health care system, citing data that shows more than 500,000 Covid-19 cases and 1,900 deaths have been reported among health care staff since the public health emergency began.

    Dec. 16 webinar: Hard truths on the current and future state of the nursing workforce

    Requirements to know

    The regulation establishes a two-phase process for providers and suppliers who participate in Medicare and Medicaid to vaccinate their staff. Under the rule, all eligible staff must receive their first dose of the Covid-19 vaccine by December 5. All eligible staff will then need to be fully vaccinated against Covid-19 by January 4, 2022. While the rule applies to all provider and supplier staff, regardless of whether they are patient-facing, CMS said it will not apply to those who work 100% remotely and do not interact with any other staff.  

    Unlike the employer Covid-19 rule issued by OSHA, the CMS rule does not have an option for staff to choose weekly testing over vaccination. CMS said workers may be exempt if they fall into one of the categories covered under federal law, including having certain allergies, medical conditions, or religious beliefs.

    CMS estimated the requirement will apply to approximately 76,000 providers and cover over 17 million health care workers across the country. The requirement covers 21 different types of providers and suppliers, including residential congregate care facilities, acute care settings, outpatient facilities, and home-based care. Notably, the rule does not cover physician offices, but depending on their size, some offices may fall under the OSHA guidelines.

    Providers and suppliers will need to track and securely document staff vaccination, including exemption requests. CMS said providers and suppliers can use their own tracking system or the CDC's Excel-based tool available on the National Healthcare Safety Network (NHSN) website. CMS will rely on standard state surveyors for enforcement and, depending on the severity of noncompliance, providers could lose Medicare privileges.

    What remains unclear based on the regulations is how these tracking requirements will overlap with new quality reporting requirements related to the Covid-19 vaccine. Another outstanding issue is how the rule will interact with state laws. To date, some states have passed laws prohibiting Covid-19 mandates, while others have imposed strict mandates.

    Impact of Covid-19 vaccine mandate

    While the mandate is likely to have some impact on the health care workforce, lessons learned from state- and organizational-level mandates suggest the federal mandate will not cause health care workers to leave in droves.

    That's in part because vaccination rates among health care personnel vary by region, facility, and job type. CMS cited data that showed vaccination rates for long-term care facility, hospital, and end-stage renal disease (ESRD) facility staff are 67%, 64%, and 60%, respectively. And while certain facilities and regions have lower vaccination rates than others, national vaccination rates appear to be high among providers: 96% of physicians as of June, 88% of nurses as of August, and 75% of advanced practice providers as of March.

    But given the current health care workforce shortages, which have been exacerbated by the pandemic, many executives have said any loss of staff is concerning—and hospitals across the country are reporting at least some losses stemming from vaccine mandates. However, regional shortages could get better once this mandate goes into effect nationwide, as workers will not have the option to transfer to a different state that does not require a vaccine.

    Even so, the nation is dealing with an acute health care staffing shortage, particularly among nurses. These shortages have long-term and rippling effects as health care is ultimately a team sport. The system can't care for patients with just doctors, we need nurses and advanced practice providers too. To retain these critical employees, health care executives need to focus on those staff now.

    Rebuild organizational loyalty and stabilize the exodus of your clinical workforce

    The health care workforce, particularly the nursing workforce, is in flux. Organizational loyalty has been eroded. Staff are looking to employers for better work/life balance, more competitive wages, and improvement in the complex practice environment itself. The increase in hospitals offering hiring bonuses and investments in traveling nurses has made RNs even more likely to change employers. They’re moving to where they feel most valued.   

    Tried-and-true HR retention practices—such as attention to vulnerable engagement drivers, providing relevant professional development programs (many of which were suspended during Covid-19), and establishing processes for meaningful recognition—can go a long way in rebuilding organizational loyalty and stabilizing your workforce over the long term. But leaders must also focus on strategies that respond specifically to nurse concerns about the challenges of the work environment, including providing flexible schedules, developing a pipeline of support staff to enable RNs to operate at the top of license, and organizing work differently by establishing team-based care versus primary or total patient care.

    Hard truths on the current and future state of the nursing workforce

    Thursday, December 16 | 1 p.m. ET

    Carol Boston-FleishauerThere have been concerns for years about looming supply and demand imbalances in the nursing workforce. The shortage is no longer looming. It’s here now, and it’s a crisis. In the current workforce landscape, nursing staff are not in the geographies, sites of care, or roles where they are needed most. This context is untenable and requires a different approach from the C-suite than previous cyclical workforce supply-demand imbalances.

    Join Advisory Board's Carol Boston-Fleischauer to:

    • Understand what sets the current context apart from previous workforce shortages;
    • Discuss the hard truths and the executive mindset shifts needed to adapt to the current landscape; and
    • Learn tactics and executive strategies to navigate your workforce challenges.
    Register now

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