In this episode of the Advancing Surgical Care Podcast, ASCA Chief Executive Officer Bill Prentice is joined by ASCA Assistant Director of Government Affairs Stephen Abresch and ASCA Director of Education and Clinical Affairs Gina Throneberry for a discussion about the Centers for Medicare & Medicaid Services’ COVID-19 vaccination mandate and quality reporting rules for participating healthcare workers, including those affiliated with ASCs.
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Bill Prentice: 0:37
Hello, and welcome to the Advancing Surgical Care Podcast. I’m Bill Prentice, ASCA CEO, and your host today. On this podcast, we want to advise ASCA members of their responsibilities under the COVID-19 vaccine mandate that was issued by the Centers for Medicare & Medicaid Services, or CMS, especially given the recent Supreme Court decision to uphold CMS’ authority with respect to mandating vaccines for most healthcare workers. In addition, we thought it would be helpful to spend a few minutes addressing the new ASC quality reporting requirement related to the COVID-19 vaccination of ASC personnel. So, as you all likely know, CMS issued a rule late last year requiring virtually everyone who works in healthcare settings that participate in Medicare and Medicaid, including ASCs, to be fully vaccinated against COVID-19. After the rule was issued, 24 states initiated a lawsuit challenging the legality of the rule, and Texas brought a separate suit of its own. The remaining 25 states, as well as Washington, DC, and the US territories, did not challenge the mandate. So, all arguments were held at the Supreme Court on January 7 of this year on the multi-state case, and an opinion came quickly down on January 13 to uphold CMS’ authority to require Medicare and Medicaid providers and their workers to be vaccinated. Subsequently, the Texas challenge was also dismissed. So, while the Supreme Court decision clarified that the mandate was legal, it also resulted in CMS having to issue three separate timetables for compliance, depending upon whether or not your state was a party to that litigation. Now, I know that’s a lot of legal backstory, but I thought it was needed in order to explain why we now have 25 states with one timetable to comply, 24 with another, and Texas with a timetable of its own. So, with that background, let me welcome my guests to walk us through more of the details of the steps that ASCs need to follow to stay compliant with these CMS regulations. I’m joined by two of my ASCA colleagues, Stephen Abresch, assistant director of government affairs, and Gina Throneberry, our director of education and clinical affairs. Stephen, let me start with you. As I mentioned in my opening, right now we have three different timetables for complying with the vaccine mandate for healthcare workers. Rather than run through the breakdown of all the states, let’s just trust that our listeners know which group of states they’re operating in. And if they don’t, they can easily access the three state lists on the ASCA website. So, Stephen, walk us through the timetable for compliance with the vaccine rule, starting with the states that did not join the litigation, followed by the states that were part of the Supreme Court case, and then Texas.
Stephen Abresch: 3:11
Happy to. So, it is worth noting that for all states, the requirements remain the same, the timetables just differ for each of the states. So, for the 25 states, DC and US territories that did not join litigation, phase one implementation requires facilities to demonstrate that 100 percent of staff have received at least one dose of a COVID-19 vaccine, have been granted an exemption or have a pending request for one, or have a temporary delay as recommended by the CDC by January 27. Phase two requires by February 28, facilities ensure 100 percent of staff have received the necessary doses to complete a vaccine series, which CMS considers to be one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series, been granted a qualified exemption or identified as having a temporary delay per the CDC. And then enforcement actions would begin starting March 28. For facilities in the 24 states that were parties to the lawsuits brought by Louisiana and Missouri, phase one implementation deadline is February 14, phase two deadline is March 15, and enforcement actions would begin April 14. And last but not least, Texas. Facilities in Texas have a phase one implementation deadline of February 21, phase two of March 21, and enforcement actions set to begin April 20.
Bill Prentice: 4:39
Great, and I’m sure our members can actually go to the ASCA website and confirm which group they’re in and see those dates and make sure they really understand them. Stephen, another question that we’re often asked about, you kind of touched on this, is which employees are covered and who might be eligible for an exemption under the rules. Can you briefly tell us what the rules say about covered individuals and then address the question of who may be eligible for an exemption?
Stephen Abresch: 5:04
Sure. The language added to the Conditions for Coverage for ASCs provides that regardless of clinical responsibility or patient contact, the policies and procedures facilities implement must apply to the following staff who provide any care, treatment or other services for the center and/or its patients, and those staff are: center employees, licensed practitioners, students, trainees and volunteers, and individuals who provide care, treatment or other services for the center and/or its patients under contract or by other arrangement. These requirements don’t apply to center staff who exclusively provide telemedicine or telehealth services outside the center and have no direct patient or staff contact, as well as staff who provide support services for the center which are performed outside the center and once again have no direct contact with patients and other staff. In terms of exemptions, the rules do provide that individuals with certain allergies or recognized medical conditions may have grounds to seek a medical exemption. The rules also allow for nonmedical exemptions, such as a religious exemption, in accordance with Title VII of the Civil Rights Act. Importantly, surveyors will not evaluate the details of the request for a religious exemption, nor the rationale for an ASC’s acceptance or denial of the request. They will only review to ensure the center has an effective process for staff to request a religious exemption for sincerely held religious beliefs.
Bill Prentice: 6:35
That’s very thorough, and I thank you for that. Before we continue, I’m going to ask you and Gina to stand by for just a minute while we hear a quick word from our podcast sponsor. We’ll be right back.
This episode of the Advancing Surgical Care Podcast is brought to you by in2itive Business Solutions, a revenue cycle management company who has served the ASC community for over 10 years. in2itive Business Solutions works with existing billing systems to streamline your processes and maximize your center’s reimbursements. Visit in2itive today at ascrev.com.
Bill Prentice: 7:13
Stephen, before the break, you summarized the timetables for compliance with the vaccine mandate, who the covered individuals are, and the requirements that healthcare facilities, including ASCs, develop and implement policies and procedures for ensuring the vaccine mandate is carried out. It’s important to note for our listeners that for most ASCs, the adoption of the formal policies and procedures that CMS has asked for requires the approval of ASC governing bodies and you will need to be able to show proof of the same. So, Stephen, before I turn it over to Gina and ask her a couple of questions, anything you’d like to add or anything we missed?
Stephen Abresch: 7:48
The only thing I’d really like to raise is that while we are nearing the end of the legal fight over the validity of the CMS mandate, unfortunately, I think we are coming towards the beginning of new legal fights, mainly over actual implementation of it. So, we have seen a number of states during their 2021 legislative sessions pass legislation that conflicts with the CMS mandate, prohibiting private entities from imposing vaccination mandates on staff. This year, we have a number of bills doing the same essentially, and in fact, we even see states like Florida where the Agency for Health Care Administration has issued a press release noting they will not survey for compliance with CMS mandates due to state law. I think CMS is going to have some legal headaches addressing these in the near future and we’re just going to see more court cases stemming from it.
Bill Prentice: 8:41
Fascinating. Well, I guess, full employment for you to stay abreast of all these changes as they come, and obviously, we’ll share those with our members as they come in to being and are noteworthy of us mentioning to them. Thanks.
Stephen Abresch: 8:53
Thanks for having me.
Bill Prentice: 8:54
Gina, I want to bring you into the conversation and talk about another vaccine-related matter. Our current CMS payment rule, the one that was published back in November, made several changes to the ASC Quality Reporting Program, including the adoption of a new measure related to the vaccine. We received questions from members asking if the quality reporting requirement is linked to the rule and timetable for complying with the vaccine mandate. So, the short answer is that the mandate and the quality reporting requirement are not linked. However, ASCs will need to start reporting the COVID-19 vaccination coverage of all their personnel through the ASC Quality Reporting Program. Gina, please take our listeners through the steps of what an ASC will need to do to follow and report this data as well as the critical dates for submitting the data.
Gina Throneberry: 9:44
Sure. Thanks, Bill. And let me reemphasize what you just stated. The new quality measure, which is ASC-20: COVID-19 Vaccination Coverage Among Health Care Personnel, is not related to the vaccine mandates. So, the data for ASC-20 will be reported into the National Healthcare Safety Network, or NHSN. This probably sounds familiar to some as this was the platform that was used to report data for ASC-8, which was the influenza vaccine measure. ASCs no longer have to report data on ASC-8 unless it is required by your state. To prepare for entering the data for ASC-20 into NHSN, two things need to occur: 1) the facility must have an active NHSN account, and 2) the facility must have an NHSN facility administrator with a current SAMS security profile. If you’re not certain if your ASC has an active account or a current SAMS security profile, I highly recommend going to the ASCA website, under the tab ‘Federal Regulations’ then click on quality reporting requirements, and it will provide information on accessing the NHSN’s website. Now let’s discuss ASC-20. The specifications for ASC-20 are also listed on ASCA’s website under the ‘Federal Regulations’ tab. I would suggest visiting this webpage to get familiar with the data you need to collect and also report. ASCs will begin reporting data beginning January 1, 2022, for the calendar year payment 2024, and report this data into NHSN. ASCs are to collect the numerator and denominator for at least one self-selected week during each month of the reporting quarter and submit the data before the quarterly deadline. First-quarter data must be entered into NHSN by midnight Pacific time on August 15, 2022. And these reporting deadlines are listed on ASCA’s website. However, I would highly recommend either reporting the data every month or at the end of the quarter. If you wait until the deadline, there is going to be the high probability you will forget or confuse the data with what you’re presently collecting. So, for example, if you wait until August 15 to report the first-quarter data, you are then collecting the data for the third quarter, so as you can see, this could get very confusing quickly if you wait.
Bill Prentice: 12:24
Wow. Gina, that’s a lot of information and I know I had a hard time trying to internalize or remember it all. And I know you referenced a couple of times going to our website or to the CMS website for more information. Restate that—tell us again where listeners can go to get more information about this measure.
Gina Throneberry: 12:46
So, as you said, Bill, there are many different websites, on the CDC website, CMS’ website, and ASCA has put most of these links on our webpage, the webpage that I mentioned earlier in this podcast. I will also recommend to be on the lookout for emails and posts on ASCA Connect from ASCA staff about webinars that are and have been hosted by CMS and the CDC. If they have already occurred, then we will provide information about how you can get information about these webinars. And if there are upcoming webinars, we will also provide that information.
Bill Prentice: 13:30
Well, that’s great. So, you and Stephen and other members of the ASCA team have really done a lot of the work for our members in collecting that information, collecting those different links, and you can go to the ASCA website to find out more. Well, that’s great, and Stephen and Gina, I appreciate both of you joining me for this discussion and talking both about the mandate and this new measure. There’s always a lot happening on the regulatory front for ASCs, and I know our members appreciate having you and your colleagues provide guidance and advice as we work through all these things. Before signing off, I’d like to once again acknowledge the support of in2itive Business Solutions, the sponsor of this episode of the Advancing Surgical Care Podcast. in2itive is a revenue cycle management company that has served the ASC community for over 10 years, and we value their participation in the ASCA affiliate program. We hope you found today’s podcast helpful and thank you for listening.