Home Health & Hospice Week

Just how tight your local labor market is may determine your course.

Recap: After the Centers for Medicare & Medicaid Services issued a vaccine mandate regulation on Nov. 5, states and state coalitions mounted legal challenges to them in federal courts across the country. On Nov. 29, the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction covering 10 states, blocking the CMS interim final rule with comment period (IFC) that would require employee COVID vaccination for 21 types of Medicare health care providers — including HHAs and hospices. Then on Nov. 30, the U.S. District Court for the Western District of Louisiana granted a nationwide preliminary injunction on the matter. (See HCW Vol. XXX, No. 43 for more details.)

But without an official statement from CMS, HHAs and hospices were unsure whether they should proceed with the regulation requirements. Now CMS has issued a memo that sheds light on the quandary.

“While CMS remains confident in its authority to protect the health and safety of patients in facilities certified by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation,” the agency says in a Dec. 2 memo to state surveyors. “Accordingly, while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule,” CMS instructs in QSO-22-04-ALL.

Caveat: “Providers are still subject to state legislation that either mandates or prohibits the mandating of COVID-19 vaccination,” points out the American Physical Therapy Association Home Health Section on its website.

The prohibition can be just as important as the mandate. “If you are in a state with a contrary state law — such as Florida — then you would want to discuss your options with an attorney,” recommends attorney William Vail with law firm Polsinelli in Atlanta.

In the Dec. 2 memo, CMS points out that “health care facilities, of course, may voluntarily choose to comply with the Interim Final Rule.”

The National Association for Home Care & Hospice, Vail, and other experts urge HHAs and hospices to continue their efforts to comply with the regulation, if state laws don’t prevent it. “We are advising NAHC members to continue to undertake, in good faith, all necessary measures to be compliant with Phase 1 and Phase 2 requirements of the rule,” NAHC says in its member newsletter.

“Take this opportunity to encourage as many members of your staff as possible to get vaccinated, and continue to refine your exemption/accommodation procedures for those with medical/religious objections,” Vail advises.

However, agencies may want to hold off on the final step of dismissing staff, NAHC allows. In other words, providers can set up all the policies and procedures for compliance and process exemption requests, but stop short of “any steps that would have been taken with staff that are not vaccinated or subject to an exception,” the trade group suggests.