CMS tweaks COVID-19 vaccine memos to clarify survey process

by A.J. Plunkett (

Surveyors on site for a Life Safety Code®-only complaint or LSC-only follow-up survey are not expected to check for compliance with the new requirements to vaccinate healthcare workers against COVID-19, according to recently updated CMS memos.

Other revisions highlight expectations for the vaccination of contracted staff.

CMS’s Quality, Safety and Oversight (QSO) group has revised all three memos that outlined when and how surveyors were to implement the new requirements that were outlined in new Conditions of Participation and Conditions of Coverage, published as an interim final rule last November.

The three memos were essentially the same but covered different states as legal challenges to the interim rule wound through the courts, including the Supreme Court. All the challenges failed, and surveyors with CMS and all the accrediting organizations (AO) began implementing the requirements as soon as they became effective.

The newest revisions also update the attachments with specific survey guidance for each provider type, including Attachment D for hospitals.

According to the revised QSO memos, CMS says now that “surveying for staff vaccination requirements is not required on Life Safety Code (LSC)-only complaints, or LSC-only follow-up surveys. Surveyors may modify the staff vaccination compliance review if the provider/supplier was determined to be in substantial compliance with this requirement within the previous six weeks.”

While there are no major changes, there is also no new flexibility in scoring, notes Kurt Patton, MS, RPh, pharmacist, founder of Patton Healthcare Consulting, and former director of accreditation services for The Joint Commission. (Patton Healthcare was recently acquired by Healthcare Building Solutions, a national company that provides survey preparation, medical equipment planning and other help for healthcare facilities management).

The two most important notations for hospitals in the revised information, says Patton, is that there is “no mandate for a LSC complaint surveyor to evaluate the vaccine program during a LSC-only survey.”

And CMS is now providing sampling guidance to the state surveyors, he adds. “After looking at the aggregate data, they should sample individual vaccine data for 6 direct care staff, 4 from the vaccinated list and 2 from the non-vaccinated/exempt list to verify appropriate documentation is on file.”

In addition, CMS “further advises that 2 of the 6 reviewed should be contracted staff files,” notes Patton.

The revised hospital guidance clarifies multiple times expectations for contracted staff. One addition to the guidance emphasizes that “the hospital will provide their process for how the hospital ensures that their contracted staff are compliant with the vaccination requirement.” 

This may be a softening in CMS’ stance on how hospitals document their contracted staff are compliant, notes Jennifer Cowel, RN, MHSA, CEO of Patton Healthcare Consulting and a former Joint Commission executive and nurse surveyor.

“I expect that a hospital could develop a process for contracted staff that differs from the employed staff,” she says.  

Contract staff is also highlighted among the information surveyors should gather for data validation, and a separate note states:

“Failure of contract staff to provide evidence of vaccination status reflects noncompliance and should be cited under the requirement to have policies and procedures for ensuring that all staff are fully vaccinated, except for those staff who have been granted exemptions or a temporary delay.”

CMS has said that surveyors are expected to check for compliance with the new requirements only during regular survey activities. However, hospitals were expected to be 100% compliant within 60 days of the publication of the initial memos, first published in December and early January.

That means that all hospitals must be in compliance by now. However, “many are still organizing their data, trying to track down evidence from staff, physicians, and contractors — 100% compliance for thousands of individuals at an organization is very difficult,” notes Patton.

“If the person misplaced their COVID card, you can try to validate in a state database, but not every drive-through site entered every encounter into the database,” he says.

Be sure to have a written procedure and policy for meeting the vaccine requirements. Cowel warns that some hospitals are being cited for not writing up their process, as required by the memo.

“For example, they may have a great system for tracking, but they are also expected to have a written policy or procedure that outlines their process for tracking and securely documenting the COVID-19 vaccination status of all staff specified in the memo.”

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CMS, COVID-19, Survey Preparation