Requiring assisted living providers to report weekly COVID-19 vaccination data to the federal government would be too much to ask of operators already battling pandemic effects and even could stop some operators from continuing to provide services to Medicaid beneficiaries, according to representatives of several national associations providing comments to the Centers for Medicare & Medicaid Services.

“Requiring AL providers to directly report vaccinations would only add administrative and cost burdens on providers already facing dire financial situations and workforce challenges,” LeadingAge Vice President of Legal Affairs and Social Accountability Cory Kallheim wrote in comments echoed by the National Center for Assisted Living, Argentum and the American Seniors Housing Association in separate letters. “At bottom, the feasibility of requiring additional reporting requirements for AL providers at this stage appears overly burdensome, unnecessary, and redundant to what may already exist in many states,” Kallheim added in his letter to CMS Administrator Chiquita Brooks-LaSure.

The associations sent comments in response to a May announcement of a new interim rule from CMS requiring skilled nursing facilities and intermediate care facilities for individuals with intellectual disabilities to report weekly COVID-19 vaccination status data for both residents and staff members. Although the announcement was specific to those types of facilities, CMS at the time said it was seeking comment on “opportunities to expand these policies to encourage vaccine uptake and access in other congregate care settings,” including assisted living communities, group homes and psychiatric residential treatment facilities.

The commenting deadline was Monday.

Just Medicaid participants or all providers?

Some of the associations representing senior living operators asked CMS to clarify whether the agency is considering extending requirements to assisted living operators that provide home- and community-based services through Medicaid waivers or to all assisted living operators, including those that exclusively receive private payments.

If the reporting requirements were extended only to assisted living providers that participate in state Medicaid HCBS waiver programs — currently approximately 17% of assisted living providers — then a “bifurcated reporting system” could result, “whereby the minority of AL providers report and others would not,” Kallheim said. “The resulting data would have little value and this only highlights the jurisdictional issues facing a federal approach to regulating AL providers that are regulated on the state level.”

On the other hand, wrote Sara Rudow, senior director of regulatory services for NCAL and the American Health Care Association, “Extending such reporting requirements to private pay congregate care settings we believe would exceed CMS’ current statutory authority.”

Argentum President and CEO James Balda requested that CMS specifically state that the requirements would not apply to assisted living communities that do not participate in Medicare or Medicaid programs, “as these are not subject to CMS regulatory or oversight authority.”

But even for assisted living operators that provide services to Medicaid beneficiaries, a program jointly funded by the federal government and states, “any such future reporting requirements should be considered through the existing state waiver programs, thereby giving States the authority for implementation,” NCAL’s Rudow said.

And because assisted living communities already must comply with various state-level requirements, Balda said, any additional requirements from CMS could be redundant. Further, American Seniors Housing Association President David Schless said in his letter, “[o]verlaying a federal requirement to assisted living licenses could interfere with state requirements or at the very least, create confusion.”

Not medical settings

Beyond the matter of CMS’ authority, however, is the matter of whether assisted living providers would be able to comply with a reporting requirement without a resultant administrative or financial burden, according to the associations.

Assisted living communities, unlike nursing homes, “do not offer intensive medical care or nursing services but rather are home environments where a resident can obtain assistance with activities of daily living such as bathing, dressing, and managing medications,” Schless conveyed. Medical care often is provided by external healthcare providers, and operators “generally are not equipped to store and manage vaccine supply and necessarily must rely on a third party for these services and all attendant reporting responsibilities,” he added.

Assisted living communities, Balda said in his letter, “primarily focus on promoting an independent lifestyle with assistance customized pursuant to each resident’s needs and limited medical care, whereas nursing homes prioritize the provision of medical care.”

Additionally, LeadingAge’s Kallheim wrote in his letter, a vaccine reporting requirement in assisted living could exacerbate existing workforce challenges and “implies a level of control over employees that simply does not exist.”

“The opportunity to find employment in other industries that do not require a vaccination can only hurt the recruitment and retention of AL and other long-term care providers,” he said. “This is a potential unintended consequence of expanding these requirements to other settings such as AL providers.”

And operators already are facing financial challenges, the leaders said. Assisted living providers, Argentum’s Balda noted, “have not received anywhere near close to the same level of federal and state relief as other types of providers.” Assisted living communities, he said, have experienced a collective $30 billion in losses due to the pandemic and yet have received only about $1 billion in relief from the Provider Relief Fund, which represents less than 1% of the overall fund.

“Many are still waiting for relief, and others have been inexplicably denied,” Balda said. “As a result, nearly half are operating at a loss, and over half report that closures are imminent.”

Potential solutions

All of the letter-writers said the associations support efforts to reduce the spread of COVID-19 through vaccination promotion and other means, and they offered potential solutions outside of the reporting of vaccination data to CMS by assisted living providers and in addition to having states be responsible for implementation of any reporting requirements.

CMS could make compliance with the reporting requirements voluntary, Argentum suggested.

“This framework would allow facilities most in need of vaccination resources to notify CMS of such a need, without subjecting all Medicaid participating ALFs to penalties for potential noncompliance with weekly reporting requirements,” Balda said. “Argentum welcomes the opportunity to work with CMS to establish such a voluntary program.”

Similarly, ASHA’s Schless suggested that, “[i]nstead of mandating vaccination reporting for all settings, consideration should be given to providing a means that allows senior living providers to request assistance for resources such as the vaccine and supplies, educational materials, and other technical support to ensure adequate access to these necessary and lifesaving tools.”

Noting that some states and the federal government have discouraged employers from mandating COVID-19 vaccination as a condition of employment, LeadingAge’s Kallheim said, “If the goal is to increase vaccination rates, there either needs to be mandatory vaccinations or a unique educational push that does not punish providers. This all must be done with the understanding of the current workforce challenges facing AL and other long-term care providers.”

As it stands, NCAL’s Rudow said, implementing a “potentially over-burdensome requirement” for Medicaid providers may lead them to decide not to provide assisted living services through the waiver program.

“This would further limit access for residents and their families to AL, an important part of the long term care spectrum” she wrote, noting that in many states, Medicaid assisted living providers are small businesses with limited resources.

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