Vaccine Mandates & Provider Relief Updates

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This information is provided by national senior living association partner, Argentum.

This week, Argentum learned that the Biden Administration has submitted both the OSHA Emergency Temporary Standard (ETS) and the CMS Interim Final Rule (IFR) relating to federal vaccine mandates to the White House Office of Management and Budget (OMB) for final review (this is the last step before being finalized). The rules may be published as early as this week, and as both are emergency rules, will go into effect upon publication in the federal register and simultaneously open a comment period for consideration of future changes to the rules.

The CMS IFR will apply to all Medicare and Medicaid certified facilities, expanding on a rule announced on August 18 that would have more narrowly applied to nursing homes. Argentum met with a senior CMS official last week to review our concerns with the forthcoming rule, including potential compliance conflicts with the OSHA ETS, and based on our conversation we believe that this rule is likely to apply only to facilities with a certificate of participation. 

The OSHA ETS will require all companies with more than 100 employers to mandate workers be vaccinated or take a weekly test. The ETS is expected to broadly apply to senior living operators that have more than 100 employees. Employers not in compliance with the ETS could be subject to a $14,000 per violation penalty.

Argentum plans to present an informational webinar in the coming weeks following publication of the rules. For additional information on these mandates, please refer to this memo prepared by Argentum’s outside counsel, Foley Hoag LLP.

Provider Relief Fund (PRF)

As a reminder, the application for Phase 4 of the PRF is now available on the Provider Relief Fund Application and Attestation Portal and will close on October 26, 2021 at 11:59 pm ET. We encourage providers to refer to this memo prepared by Argentum’s outside counsel Foley Hoag LLP with additional information on the application process and considerations for completing the application. As part of your application, we encourage an addendum to be included, such as:

[Provider/Community Name] has been on the frontlines of the COVID-19 pandemic, providing 24/7 direct care to [##] vulnerable seniors who require assistance with daily activities such as eating, bathing, toileting, and medication management. As referenced in our application, this came at an extraordinary cost of [$$] and we are in critical need of relief to continue meeting the daily care needs of our residents. Thank you for your attention to the unique needs of our facility, residents, and caregivers as you determine a methodology in the forthcoming relief that fully reflects the impact of COVID-19 on frontline providers.

The release of funds is expected in December, which will be determined through a methodology based on application data received. If you missed Argentum's webinar on Phase 4, you can now access the slides and the webinar recording, and we also encourage you to register for the fourth and final webinar hosted by HRSA, scheduled for next Thursday, October 21 at 3:00 p.m. ET. For technical assistance with applying, you may call the Provider Support Line at (866) 569-3522.

Additionally, providers who believe their Phase 3 determination was not calculated correctly may complete a PRF reconsideration request using this form and submitting it by 11:59:59 pm ET on November 12, 2021. Providers are encouraged to first review the detailed information regarding methodology for calculating Phase 3 payments to determine if their calculations were incorrect, and the detailed FAQs on the reconsideration process. Please note that HRSA will only consider reconsideration requests from providers who believe their Phase 3 payment calculation was incorrect, and HRSA will not consider reconsideration requests that would require a change to payment methodology or policy.