CMS to states: Enforce vaccine and other patient safety requirements or else

One way or another, CMS is promising states that it will enforce its recent interim final rule requiring hospital and other healthcare staff caring for COVID-19 patients to be fully vaccinated.

CMS published a warning to states today that if they are contracted with the federal agency to carry out health and safety surveys that failure to carry out their responsibilities, including enforcing the new vaccine requirement, will result in a reduction of federal funds to the state’s survey offices.

Federal funds will be used then to “address any gaps” in implementing requirements under the Medicare Conditions of Participation, said CMS. Funds will be used, says CMS, to enforce the requirement through other means.

To that end, CMS is reducing the state of Florida’s survey and certification funding by more than $1.2 million, according to a statement issued by CMS in reply to a query from the Accreditation & Quality Compliance Center. Florida’s governor said last month he will not allow the vaccine mandate to be enforced.

In a Quality, Safety & Oversight Group memo, QSO-22-12-ALL, published February 9, CMS reminded its state survey agencies that funding for their offices was a result of an agreement between the Department of Health and Human Services and each state under Section 1864 of the Social Security Act.

The agreement “stipulates the functions of the State to, among other things, certify whether or not providers and suppliers within the state comply with all applicable definitions and requirements under the Act and implementing regulations,” which the memo said included “surveying for the purpose of certifying to the Secretary the compliance or non-compliance of providers and suppliers of services and resurveying such entities, at such times and manner as the Secretary may direct.”

That includes enforcing the interim final rule set out late last year and earlier this year that mandated all healthcare personnel who might be exposed to COVID-19 be fully vaccinated.

In answering a query about the QSO, CMS stated:

“The prevalence of COVID-19 and its variants in health care settings continues to increase the risk of staff contracting and transmitting COVID-19, putting patients, families, and broader communities at risk. The Centers for Medicare & Medicaid Services (CMS) used its authority—confirmed by the U.S. Supreme Court—to protect the health and safety of patients and staff by requiring health care facilities and suppliers that participate in Medicare and Medicaid to vaccinate their staff.”

“As CMS implements the rule, states are responsible under their federal agreements for certifying that facilities are in compliance with the rule. If states refuse to carry out all their responsibilities under the law, CMS can exercise its discretionary authority under the terms of agreements between the agency and the state to revise budget allocations to account for the survey work the state is not performing. This would allow CMS to engage other federal resources to establish a means of evaluating compliance with the requirements of the CMS health care worker vaccine rule that the state survey agency refuses to survey.”

The statement went on to address Florida specifically.

“In keeping with the longstanding agreements CMS has with states under the Social Security Act, CMS is exercising its discretionary authority under the terms of agreements between the agency and the state to reduce Florida’s survey and certification budget allocation by $1,245,400 to adjust for the limited scope of survey work,” said the statement.

“CMS will continue to provide Florida with more than $11 million to support the state’s other surveying responsibilities. CMS remains committed to protecting people from the devastating effects of COVID-19 while also ensuring programs operate according to the law.”

The memo informs “states of potential funding risks that may result from their failure to carry out their responsibilities under these agreements” with CMS. “Federal resources will be engaged to address any gaps.”

That may include hiring other contractors to carry out surveys for the vaccine requirements, said the QSO memo.

“These state allocations would be reduced for the current fiscal year and each successive year until the state resumes full oversight of the entirety of Medicare and Medicaid regulations. These funds would be used by CMS to support federal oversight alternatives in the state (including contractor support) to safeguard the health and safety of those receiving care from Medicare and Medicaid certified providers and suppliers. The scope of the allocation reduction will be commensurate with the impact of the State actions and the federal resources needed to provide appropriate oversight of providers and suppliers.”

Regardless of what is going on within a state, hospitals and other providers are still expected to comply with the CoPs, said CMS.

And accrediting organizations will continue to enforce the vaccine regardless of the state, CMS said.

“Despite a decision by a State Survey Agency to restrict their compliance reviews, Accrediting Organizations with deeming authority are required to continue surveying for compliance with all Medicare and Medicaid regulations. Medicare and Medicaid certified providers and suppliers within every State continue to be responsible for compliance with the federal requirements for all Conditions of Participation, Conditions for Coverage, and Requirements for Participation.”

The interim final rule published late last year establishing new CoPs outlining the vaccine requirements was challenged in several state courts. After a request for an injunction against enforcement went before the Supreme Court, the justices lifted the injunction and CMS has gone forward with enforcement.