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CMS

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Mandatory Vaccination Update
Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff Vaccination
OSHA Emergency Temporary Standard (ETS)  

RCPA continues to work for clarification with our State stakeholders from the Department of Human Services (DHS) and the Governor’s office as well as for guidance at the federal end through our National Councils.

The National Council on Mental Wellbeing has received several questions around the recent vaccine mandates released by the Biden Administration. The following links and summaries from the Council’s federal consultant group may answer some of your questions.

On November 4, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule with comment (IFC), entitled “Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff Vaccination” (Rule and Press Release).The FAQ provides excellent scenario-based guidance that may be applicable to your agency.

The IFC stipulates that all staff members of certain providers and suppliers participating in the Medicare and Medicaid programs, including those who perform their duties outside of a formal clinical setting, must be fully vaccinated against COVID-19 unless exempt. The definition of applicable facilities under the Medicare-certified providers and suppliers is listed under federal statute (for example, the current Medicare definition of CMHCs (there are 129 Medicare-certified CMHCs throughout the country), which is Section 4162 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101–508, enacted November 5, 1990) (OBRA 1990), which added sections 1861(ff) and 1832(a)(2)(J) to the Act, includes CMHCs as entities that are authorized to provide partial hospitalization services under Part B of the Medicare program).

However, the definition of Medicaid-certified providers and suppliers will vary by state. To that end RCPA, as part of its efforts, is seeking this clarification and to confirm determinations on which providers and suppliers are subject to the IFC. 

As noted in the summary below, the IFC does not allow for weekly testing in lieu of vaccination and maintains the employer’s right to require full vaccination of employees regardless of exemptions listed in the IFC. The final rule is expected to be published in The Federal Register on November 5, 2021, with an expected effective date of January 4, 2022. There will be the opportunity to comment on the IFC. Comments must be received no later than 60 days after the publication of the IFC in The Federal Register.

Also released was the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) for COVID-19 Vaccination and Testing in the Workplace (Rule; Fact Sheet; Press Release). The ETS requires employees who are employed by private-sector employers with 100 or more employees to get vaccinated or test negative for the virus once per week and wear a mask indoors. It also requires employers to provide paid time off for employees to get vaccinated and recovery time from vaccination. The 28 states with OHSA-approved state plans must also adhere to the ETS.

The ETS mandates that employers determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.

The testing requirement for unvaccinated workers is slated to begin on January 4, 2022, and employers must comply with all other requirements (i.e. providing paid time off for employees to get vaccinated and masking for unvaccinated workers) by December 5, 2021. Employees falling under the ETS rules will need to have their final vaccination dose by January 4, 2022.

OSHA has published a series of resources with respect to this ETS, including frequently asked questions, guidance materials, and reporting requirements.

RCPA will continue to update members on the status and any changes to the current information that has been published.

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The Centers for Medicare and Medicaid Services (CMS) has announced an updated web-based training series on the assessment and coding of Section GG. This training is intended for providers in the following post-acute care (PAC) settings: inpatient rehabilitation facilities (IRFs), home health agencies (HHAs), skilled nursing facilities (SNFs), and Long-Term Care Hospitals (LTCHs). The course contains four lessons, including an overview of Section GG, assessment and coding of Section GG, coding of self-care items, and coding of mobility items. Each course includes interactive exercises for providers to test their knowledge related to the assessment and coding of Section GG items.

Technical questions or feedback regarding the training should be emailed to the PAC Training Mailbox. Content-related questions should be submitted to the IRF QRP Help Desk.

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The Centers for Medicare and Medicaid Services (CMS) has released the calendar year (CY) 2022 Medicare Physician Fee Schedule (MPFS) final rule. Some of the key provisions contained in this final rule include:

Telehealth Services

CMS finalized a policy to allow for Category 3 telehealth services to be available to providers through December 31, 2023. Category 3 telehealth services are those services CMS has added temporarily to the telehealth list due to the public health emergency (PHE) but wishes to consider for permanent addition to the telehealth list. Presently, many occupational and physical therapy services are on the Category 3 list, with some exceptions. However, CMS has not yet added any speech-language service codes to the Category 3 list, so their availability will cease at the end of the PHE. The current list of available telehealth codes is available here.

Therapy Services

CMS made final modifications to its policy for implementing a 15 percent payment reduction for outpatient therapy services provided in part by a therapy assistant, effective January 1, 2022. As previously finalized, any billed unit of service in which a therapy assistant independently provided more than 10 percent of the minutes of service must include a claim modifier and will be subject to the payment reduction. In this final rule, CMS slightly loosened the requirements, allowing providers to forgo appending the modifier for “remaining units” when the therapist had provided at least 8 minutes of the remaining unit, regardless of any additional minutes provided by the therapy assistant. CMS has provided numerous billing scenarios in the final rule to help explain the steps providers should take to determine when the modifier should be used. This guidance will be posted on CMS’ website.

Billing of Shared Services With a Physician Assistant (PA) or Nurse Practitioner

CMS finalized its proposed policy regarding the billing of services when both a physician and non-physician practitioner (NPP), such as a physician assistant (PA) or nurse practitioner (NP), share in the provision of a service. CMS will require the practitioner who performed the majority of the minutes relating to the service to bill for the service. Therefore, when an NPP provides more than 50 percent of the time for a given service, the NPP must bill for the service, and payment will be made at the lower applicable rate for that billed code. This policy applies to all Evaluation and Management (E/M) services provided in institutional settings, including hospitals.

CY 2022 PFS Rate-Setting and Conversion Factor

CMS finalized a series of standard technical proposals involving practice expense, including standard rate-setting refinements, the implementation of the fourth year of the market-based supply and equipment pricing update, and changes to the practice expense for many services associated with the update to clinical labor pricing. CMS finalized their proposal to update the clinical labor rates for CY 2022 through the addition of a four-year transition period as requested by public commenters.

The final rule will be published in the November 19, 2021 Federal Register.

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As ANCOR is analyzing the impact of the Centers for Medicare and Medicaid Services (CMS) mandate released this morning, it is clear that ICF employees are included; however, waiver services are not unless the provider employs 100 or more employees. We are trying to get a handle on how many providers this will impact. Please let Carol Ferenz know ASAP if this will impact your organization.

From the CMS Frequently Asked Questions document:

Q. Does this requirement apply to Medicaid home care services, such as Home and Community-Based Services (HCBS), since these providers receive Medicaid funding but are not regulated as certified facilities?

A. No, this regulation only applies to those Medicare and Medicaid-certified provider and supplier types that are subject to CMS health and safety regulations. CMS’s health and safety regulations do not cover providers of Home and Community-Based Services.

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CMS just released an Interim Final Rule With Comment Period (IFC-6) requiring COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities. Please join John Blum, CMS’s Principal Deputy Administrator, and Dr. Lee Fleisher, Chief Medical Officer and Director of the Center for Clinical Standards and Quality, in a discussion of this important rule.

When:   Thursday, November 4, 2021 2:00 pm–3:00 pm ET

Who should attend: Leaders and administrators of Medicare and Medicaid Certified Facilities as well as representatives of those who work in such facilities.

RSVP Here. Please RSVP by Thursday, November 4, 2021 at 12:00 pm ET. After registering, you will receive a confirmation email containing information about joining the webinar.

Questions: Please submit questions in advance, with the Subject heading “IFC-6 Stakeholder Call Question” here. On the call, we will answer as many of the questions received by noon as possible. We’ll also post a subsequent FAQ document.

Web links:

Press Release

To view a list of frequently asked questions, visit here. External FAQs are also posted to CMS Current Emergencies Page under ‘Clinical & Technical Guidance for All Health Care Providers.’

Interim Final Rule with Comment Period in Federal Register: web page and PDF forms.

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As required by the Biden-Harris Administration, the Centers for Medicare and Medicaid Services (CMS) issued an emergency regulation that requires the COVID-19 vaccination of eligible staff at heath care facilities that participate in Medicare and Medicaid programs.

The regulation will create a consistent standard within Medicare and Medicaid while giving patients assurance of the vaccination status of those delivering care. These requirements will apply to approximately 76,000 providers and cover over 17 million health care workers across the country.

Facilities covered by this regulation must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021. All eligible staff must have received the necessary shots to be fully vaccinated (either two doses of Pfizer or Moderna or one dose of Johnson & Johnson) by January 4, 2022.

The regulation also provides for exemptions based on recognized medical conditions or religious beliefs, observances, or practices. Facilities must develop a similar process or plan for permitting exemptions in alignment with federal law.

CMS will ensure compliance with these requirements through established survey and enforcement processes. If a provider or supplier does not meet the requirements, it will be cited by a surveyor as being non-compliant and have an opportunity to return to compliance before additional actions occur. CMS’s goal is to bring health care providers into compliance. However, the Agency will not hesitate to use its full enforcement authority to protect the health and safety of patients.

The requirements apply to: Ambulatory Surgical Centers, Hospices, Programs of All-Inclusive Care for the Elderly, Hospitals, Long Term Care facilities, Psychiatric Residential Treatment Facilities, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Home Health Agencies, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, Clinics (rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services), Community Mental Health Centers, Home Infusion Therapy suppliers, Rural Health Clinics/Federally Qualified Health Centers, and End-Stage Renal Disease Facilities.

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The Department of Health and Human Services (HHS) Secretary Xavier Becerra has again issued the renewal of the COVID-19 public health emergency (PHE) due to the continued consequences of the COVID-19 pandemic. The renewal became effective on October 18, 2021 and will extend the PHE into early 2022. This PHE status enables the Centers for Medicare and Medicaid Services (CMS) to keep all applicable waivers in place.

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Message from Centers for Medicare and Medicaid Services (CMS):

Coverage without cost-sharing available for eligible people with Medicare, Medicaid, CHIP, and Most Commercial Health Insurance Coverage.

Following the FDA’s recent action that authorized a booster dose of the Pfizer COVID-19 vaccine for certain high-risk populations and a recommendation from the CDC, CMS will continue to provide coverage for this critical protection from the virus, including booster doses, without cost sharing.

Beneficiaries with Medicare pay nothing for COVID-19 vaccines or their administration, and there is no applicable copayment, coinsurance, or deductible. In addition, thanks to the American Rescue Plan Act of 2021, nearly all Medicaid and CHIP beneficiaries must receive coverage of COVID-19 vaccines and their administration, without cost-sharing. COVID-19 vaccines and their administration, including boosters, will also be covered without cost-sharing for eligible consumers of most issuers of health insurance in the commercial market. People can visit vaccines.gov (English) or vacunas.gov (Spanish) to search for vaccines nearby.

“The Biden-Harris Administration has made the safe and effective COVID-19 vaccines accessible and free to people across the country. CMS is ensuring that cost is not a barrier to access, including for boosters,” said CMS Administrator Chiquita Brooks-LaSure. “CMS will pay Medicare vaccine providers who administer approved COVID-19 boosters, enabling people to access these vaccines at no cost.”

CMS continues to explore ways to ensure maximum access to COVID-19 vaccinations. More information regarding the CDC COVID-19 Vaccination Program Provider Requirements and how the COVID-19 vaccine is provided through that program at no cost to recipients is available on the CDC COVID-19 Vaccination Program Provider Requirements and Support webpage and through the CMS COVID-19 Provider Toolkit.

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