Federal Government Affairs News and Notes:

WISCA works closely with our national association partner – the Ambulatory Surgery Center Association (ASCA) – on advocacy and other issues important to our members. In fact, the WISCA Government Affairs Team joins a national ASCA state chapter call twice a month for a federal regulatory and legislative briefing and closely follows their published Government Affairs Updates. Here is the latest government affairs news from ASCA:

• CMS Issues Two New Memos for State Surveyors
  In June, the Centers for Medicare & Medicaid Services (CMS) issued two new memos for state surveyors related to vaccination requirements for surveyors and the frequency of surveys for compliance with the federal healthcare worker COVID-19 vaccination mandate.
• • QSO-22-17-ALL, issued June 14, reduces the frequency that state survey agencies (SA) and accrediting organizations (AO) will review a facility’s compliance with the federal healthcare worker COVID-19 vaccination mandate. Under this guidance, state survey agencies and accrediting organizations will only perform compliance reviews for staff vaccinations during initial and recertification surveys and in response to specific complaint allegations that allege noncompliance with the staff vaccination requirement. SAs and AOs will no longer be expected to perform these reviews on every survey. The memo also notes that CMS intends to update its interpretive guidance describing Immediate Jeopardy, Condition-level and actual harm determinations to ensure deficiency citations recognize good faith efforts by providers/suppliers and to more fully evaluate harm or potential harm to patients/residents by considering trends in COVID-19 rates in the community.
  • QSO-22-18-ALL, issued June 16, rescinds QSO-22-10-ALL (issued January 25) which had established that SAs and AOs entering provider and supplier locations must be vaccinated. Under the new guidance from QSO-22-18-ALL, CMS notes that under the original guidance, “State Survey Agencies and [Accrediting Organizations] are ultimately responsible for compliance with this expectation.” The new guidance also notes that the federal government has explained that the previous guidance does not include any possibility of penalties for noncompliance and actually prohibits facilities from inquiring about surveyor vaccination status, stating, “We understand that there is nonetheless some ongoing confusion about this guidance, which we expect this [rescission] will resolve.”
• CMS Updates Guidance on Emergency Exercises
  The Centers for Medicare & Medicaid Services (CMS) recently updated its surveyor memo that provides “Guidance related to Emergency Preparedness- Exercise Exemption based on A Facility’s Activation of their Emergency Plan.” CMS Emergency Preparedness (EP) regulations require facilities to “conduct exercises to test the facility’s EP plan to ensure that it works and that staff are trained appropriately about their roles and the facility’s processes.” If the facility must activate its emergency plan, however, the regulations allow for a one-year exemption from the facility’s required full-scale testing exercise. As the COVID-19 public health emergency (PHE) continues, facilities that are still operating under their activated emergency plans may continue to be exempt from their next full-scale exercise. CMS provides examples of scenarios and guidance on how to comply in this surveyor memo. The agency does encourage facilities to continue conducting their individual facility-based exercises, if possible.

• Clarification on May Updates to NHSN COVID-19 Reporting
  As ASCA previously announced, the Centers for Disease Control and Prevention (CDC) recently announced changes to the Healthcare Personnel Safety (HPS) Component COVID-19 vaccination forms following the National Healthcare Safety Network (NHSN) May 2022 release. These changes impact data collection and reporting for ASC-20: COVID-19 Vaccination Coverage Among Health Care Personnel. Among the changes is the CDC’s revised definition of what it means to be “up to date” on vaccinations. To be considered as such, a healthcare worker who is eligible must have received at least one booster. However, ASCA has confirmed with the Centers for Medicare & Medicaid Services (CMS) that although the definition of “up to date” includes at least one booster, only data on an initial series, which was considered a complete vaccination course when the rule was published, will be made publicly available. In other words, although it is a mandatory field to report, booster data will not count against your vaccinated healthcare personnel totals.
• CMS Releases Updates to ASC Guidance for Surveyors
  As ASCA announced last week, the Centers for Medicare & Medicaid Services (CMS) released a surveyor memo that provides updates to the State Operations Manual (SOM) Appendix L - Guidance for Surveyors: Ambulatory Surgical Centers. CMS published multiple final rules over the past several years that amended the ASC Conditions for Coverage (CfC). This Advanced Copy of Appendix L makes conforming revisions to the regulatory tags and interpretive guidelines, as well as clarifications and technical corrections to other guidance areas based on stakeholder feedback. Please note that since this is an Advanced Copy, it is subject to change slightly before the final copy is posted to the online SOM.