Home Health & Hospice Week

Stay tuned for official guidance before acting, however.

Home health and hospice agencies may see a little relief in the labor shortage arena due to a newly announced regulatory change.

On May 1, the Biden administration revealed that it was ending the COVID-19 vaccination requirement for a number of parties including employees of Medicare-certified health care providers. The Department of Health and Human Services “will start the process to end their vaccination requirements for … [Centers for Medicare & Medicaid Services]-certified healthcare facilities,” the White House said in a brief statement. “In the coming days, further details related to ending these requirements will be provided,” it added. “While vaccination remains one of the most important tools in advancing the health and safety of employees and promoting the efficiency of workplaces, we are now in a different phase of our response when these measures are no longer necessary.”

In a survey memo dated that same day, CMS notes that it “will soon end the requirement that covered providers and suppliers establish policies and procedures for staff vaccination. CMS will share more details regarding ending this requirement at the anticipated end of the public health emergency,” it says.

Attorney Matt Wolfe with Baker Donelson in Raleigh, North Carolina, expects the mandate to end on the PHE end date of May 11, Wolfe tells AAPC. Meanwhile, agencies should wait for the forthcoming details to make changes

Recap: The requirement’s end comes after months of struggle on providers’ parts. “HHS required Medicare-and Medicaid-certified providers and suppliers to vaccinate their staff, irrespective of their level of clinical responsibility, employment, contractor or volunteer status, or patient contact,” recount attorneys with law firm McGuireWoods in an alert. “As a result, the vaccine mandate affected thousands of healthcare providers and millions of individuals employed by, contracted with or otherwise engaged in other services (such as volunteers or trainees) in CMS-certified healthcare facilities.”

CMS “threatened covered facilities with plans of correction, civil monetary penalties, denial of payment and/ or Medicare or Medicaid termination” for noncompliance, the McGuireWoods lawyers note.

Ever since the U.S. Supreme Court upheld CMS’ vaccination mandate in January 2022, “covered facilities have been navigating the logistics of complying with this mandate,” note attorneys James M. Paul and Jody Ward-Rannow with law firm Ogletree Deakins in online analysis.

Some providers have “raised concerns that the vaccine mandate challenged their ability to recruit and retain healthcare workers who could work for non-CMS-certified providers,” the McGuireWoods alert highlights.

Short Notice Isn’t Ideal

Many providers will welcome one less requirement, including its underlying documentation duties.

“Lifting the vaccine requirement is expected to resolve many of [providers’] concerns,” including workforce issues, Paul and Ward-Rannow say.

“A continuation of the vaccine mandate is no longer needed,” says LeadingAge CEO Katie Smith Sloan in a release. “Our country is in a very different place now, as the public health emergency winds down, than in summer of 2021, when the mandate was initially proposed.”

But the timing of the PHE's end is less than ideal.

CMS issued information about the winding down of other COVID-era flexibilities much earlier. Most were addressed in the latest revision to Medicare’s PHE waiver flexibility fact sheets last updated on Feb. 24.

Providers have just days to operationalize this change.

Plus: Providers should remember that vaccination will continue to keep their fragile patients safe. “Vaccination remains one of the most important tools in advancing the health and safety of employees and promoting the efficiency of workplaces,” the White House said in its announcement.

“We continue to remind everyone that the strongest protection from COVID-19 is the vaccine,” stresses CMS in the memo QSO-23-13-ALL. “Therefore, CMS urges everyone to stay up to date with your COVID-19 vaccine,” the missive notes.

“Whether or not a mandate is in place, there is no question that COVID-19 vaccines are a safe and effective defense against the virus, which disproportionately impacts older adults and the people who care for them,” Smith Sloan says. “Ensuring  older adults’ well-being and keeping communities safe is at the core of our members’ mission,” she points out. “That’s why LeadingAge and our nonprofit, mission-driven members … continue to support vaccine education and uptake in a variety of ways,” Smith Sloan offers.

In fact: Providers are still free to require COVID vaccination of employees, Paul and Ward-Rannow point out. “The withdrawal of the federal mandate does not prohibit employers from requiring employees to be vaccinated or implementing other safety protocols,” they say.

Do this: “Now, without the federal government’s mandate forcing their compliance, CMS-certified facilities will have to determine whether to continue any of their COVID-19 vaccination requirements going forward,” Paul and Ward-Rannow advise. “Employers at covered facilities may want to conduct an individualized analysis to determine the organization’s needs, risks, and culture when deciding how to proceed.”

Staff, Patient Education Are Still On Your Plate

Don’t think you can wash your hands of vaccination-related requirements altogether if you decide to dump the mandate. While the vaccination for staff may not be required, other related duties still are, CMS points out.

In the survey memo, the agency notes its May 2021 long-term care regulation “requiring all LTC facilities to educate residents and staff on the COVID-19 vaccine (including any additional doses) and offer to help them get vaccinated.” Because “Medicare interim final rules expire 3 years after issuance unless [HHS] determines an earlier end date … this requirement will remain in effect until May 21, 2024 unless additional regulatory action is taken,” the memo clarifies.

HHAs and hospices can expect a similar requirement, experts predict.

Note: The 23-page survey memo is at www.cms.gov/files/document/qso-23-13-all.pdf. Links to the provider-specific flexibility fact sheets are at www.cms.gov/coronavirus-waivers.