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State Nursing Home Surveyors Will Apply Old Up-to-Date Definition Until Further Notice

A state Department of Health (DOH) official informed LeadingAge NY on Sept. 12, 2022 that based on Centers for Medicare and Medicaid Services (CMS) instructions, its nursing home surveyors will apply the old COVID-19 vaccine "up-to-date" definition, requiring only the monovalent booster, until further notice. On Sept. 1, 2022, the Centers for Disease Control and Prevention (CDC) recommended the use of updated COVID-19 bivalent boosters from Pfizer-BioNTech for people ages 12 years and older and from Moderna for people ages 18 years and older. The bivalent boosters were developed to target the Omicron BA.4 and BA.5 variants, helping to combat variants that are more transmissible. Subsequently, the CDC modified its definition of "up-to-date" with COVID-19 vaccines to reflect the new bivalent boosters. The change in the definition has ripple effects in the health care provider community, as it impacts quarantine requirements, work exclusion for health care personnel who are exposed to the virus, and routine screening testing of health care personnel in nursing homes.

In a communication to LeadingAge National on Sept. 2, 2022, CMS leadership acknowledged that the new recommendations pose challenges for providers and stated that compliance will be based on existing CMS guidance. They indicated that if residents and staff are currently “up-to-date” with the existing boosters, they should be considered up-to-date for compliance purposes. CMS intends to provide additional information regarding the bivalent booster at a future time.

This guidance was confirmed on Sept. 12, 2022 by a state DOH official, who indicated that on a nationwide call with state survey agencies, CMS instructed them to "survey to the existing guidance which does not mention or refer to the bivalent booster, and if residents and staff are 'up to date' with existing boosters, the facility is considered to be in compliance." However, the official noted that CMS encourages providers to follow CDC recommendations. Although the official was referring specifically to nursing home surveillance, we expect that the same policy would apply across the health care continuum.

It would not be surprising, however, if CMS shifts to the new definition of "up-to-date" in the coming weeks, as the bivalent vaccine boosters become more widely available. Nursing homes and adult care facilities (ACFs) are reminded that they are required by regulation to educate residents and staff about the COVID-19 vaccine, including recommended boosters, and to offer or arrange for the vaccine and boosters within specified timeframes. Accordingly, providers should educate staff and residents about the bivalent vaccine and prepare to make it available.

In sum, providers should be aware that:

  • Recommendations and requirements related to the primary series of COVID-19 vaccine remain unchanged. All staff must have at least the first dose in the primary series when they begin working, and the second dose within the recommended timeframe, unless they have a medical exemption.
  • Booster doses are not mandated, but staff who have not received boosters are subject to additional requirements and restrictions, including routine screening testing in the nursing home.
  • At this time, staff and residents who have received all recommended monovalent boosters are considered "up-to-date" for regulatory compliance purposes, and:
    • These staff need not be routinely tested for COVID-19 in the nursing home;
    • These staff and residents/patients need not be quarantined after an exposure or upon admission.
  • This regulatory guidance may change when the bivalent boosters become more widely available.
  • In the meantime, nursing homes and ACFs should comply with regulatory requirements to educate staff and residents about the new bivalent boosters and be prepared to offer or arrange for them when they become available.

LeadingAge NY will provide members with updates on evolving guidance as it is released.

Contact: Karen Lipson, klipson@leadingageny.org