Home Health & Hospice Week

It’s been months since Medicare’s COVID-19 vaccination requirements for healthcare workers grabbed mainstream press headlines, but those regulations are still on surveyors’ minds — and at the top of their to-do lists — as the nation appears to head into the next surge.

Recap: Following a November 2021 Interim Final Rule with comment period (IFC), the Centers for Medicare & Medicaid Services’ vaccination mandate for healthcare workers, including home health and hospice agency workers, faced a number of legal challenges. After multiple lawsuits were resolved, implementation dates of Feb. 28, March 15, and March 21 were finalized, based on the court decision governing the state. Guidance to surveyors suggested leniency if providers were significantly on track to meet their goals, but the leeway for those periods ended on March 28 in the earliest batch of states, April 14 in the second batch of states, and April 20 in Texas.

Remember, “the vaccine mandate applies to 15 types of providers and suppliers and is implemented as a condition of participation in the Medicare and Medicaid programs (CoP),” note attorneys Kinal Patel, Roger Strode, Anil Shankar, and Stephanie Schwartz with law firm Foley & Lardner. Both Medicare and Medicaid agencies “are subject to the vaccine requirement, which is consistent with CMS and State Medicaid program requirements that Medicaid-participating home health agencies meet the requirements for participation in the Medicare program,” the Foley attorneys say in online legal analysis.

What happens now? Providers court trouble if they aren’t following the rules. A provider that’s out of compliance “is at risk for additional enforcement actions, including losing Medicare or Medicaid payment,” CMS warns in an infographic for providers about the rule.

“Whatever an agency does, they must take this seriously or it could impact their reimbursement,” warns Joe Russell with the Ohio Council for Home Care & Hospice.

Providers hoping they can skirt this requirement should be warned. In Ohio, “many agencies have reported that the requirement was a primary focus point of the survey,” Russell tells AAPC.

Indiana agencies are seeing the same, shares attorney Robert Markette Jr. with Hall Render in Indianapolis.

The good news: “It seems to have gone fine,” Russell reports. “Surveyors are being reasonable and … the focus is truly around verifying compliance. It doesn’t appear to us that they are being too heavy handed,” he says.

That’s not always the case in other states, including Indiana. Markette points to one survey where the surveyor reviewed the content of an exemption request. CMS has specifically said in guidance to surveyors that they should avoid doing that.

“Surveyors will not evaluate the details of the request for a religious exemption, nor the rationale for the hospice’s acceptance or denial of the request,” the Centers for Medicare & Medicaid Services spelled out in surveyor guidance for the mandate released last December. “Rather, surveyors will review to ensure the hospice has an effective process for staff to request a religious exemption for a sincerely held religious belief.” CMS includes the same language in the home health agency guidance.

For medical exemptions, CMS instructed surveyors to review and verify “all required documentation,” which is “signed and dated by physician or advanced practice provider” and “states the specific vaccine that is contraindicated,” as well as “the recognized clinical reason for the contraindication with a statement recommending exemption.” CMS does not ask surveyors to make their own evaluation of whether the agency should have granted or denied the exemption, but rather check to make sure the required process was followed.

Contrary to this guidance, in some cases, “surveyors are appearing to second-guess exemptions,” Markette warns.

Don’t Expect A Rollback, Experts Say

Home health and hospice agencies have had a hard road to compliance on this issue. “It’s been difficult because of the quick timing of implementation,” for one, Russell says. “Not only was the compliance timeline incredibly short, but the legal process created some confusion where many people (including myself) thought that a mandate wasn’t going to be enforced,” he adds. “The fact that they kept the original timeline made things more difficult.”

Some employees, of course, have been notoriously hesitant to get vaccinated. “The idea that agencies might have to fire someone over not having the vaccine during a workforce crisis — when many of these providers were serving COVID patients for two years and who had COVID themselves — was a very tough pill to swallow,” Russell notes.

In New Jersey, Medicare-certified home health and hospices “have not had too much trouble with initial vaccinations,” relates Nancy Fitterer with the Home Care and Hospice Association of New Jersey. “They did have some trouble with booster requirements,” however, Fitterer tells AAPC.

New Jersey is one of 15 states that has a state requirement for vaccination of healthcare workers. “For New Jersey’s vaccine requirements for health care facilities and high-risk congregate settings, workers are considered ‘up to date with their COVID-19 vaccinations’ if they have received a primary series which consists of either a 2-dose series of an mRNA COVID-19 vaccine or a single dose COVID-19 vaccine, and a single booster dose,” the state notes on its COVID-19 website.

“Our health care service firms … have been having a lot of trouble and some still have large amounts of staff that are unwilling to get boosted,” Fitterer says. “We believe that the staff is waiting for the governor to go back on booster requirements.”

Some states, like New York, have pulled back booster requirements. But Fitterer doesn’t expect to see that in New Jersey. Once staff realize Gov. Phil Murphy (D) isn’t backing down, “the hope is that they get boosted,” Fitterer says.

Likewise, home health and hospice agencies shouldn’t hope for a CMS reversal either, Russell says. “We do not think CMS will back off of this requirement under the current administration,” he observes. “While I think we’re likely to see the enforcement component take a step back at some point, I don’t see the administration backing off.”

That’s likely especially true with COVID-19 cases once again on the rise in large parts of the nation.

“The vaccine mandate has been particularly impactful for non-licensed workforces, such as those found among non-acute care providers and suppliers,” the Foley attorneys observe.