A Closer Looks at Vaccine Mandates

BIRMINGHAM, AL (September 23, 2021)—On Sept. 9, the Biden administration announced that staff at Medicare and Medicaid-certified “facilities”—including home health agencies and likely home medical equipment providers—will be required to have the COVID-19 vaccine. Homecare providers should work now to get health care staff vaccinated to make sure they are in compliance when the rule takes effect, the government said.   

At the same time, the president also announced a vaccine or testing requirement for companies with more than 100 employees, which will be administered by the Occupational Health and Safety Administration (OSHA). Both mandates will be outlined through a combination of executive orders and rulemaking but those rules and details were not yet available at press time. The Centers for Medicare & Medicaid Services (CMS) was expected to release an Interim Final Rule with a comment in September or October; OSHA is working on an Emergency Temporary Standard and will not have comments.

And that’s why confusion reigns. Who will the mandate apply to? How will it be implemented?

“Based on what we think is going to happen, (CMS’s mandate) won’t apply to private duty providers,” Angelo Spinola, shareholder at Polsinelli law firm, said during an informational webinar from the National Association for Home Care & Hospice (NAHC). But, he said, it will likely apply to Medicare home health and hospice providers.

That’s good news for Susan Ponder-Stansel, president and CEO of Alivia Care, Inc., a home health agency working in North Florida and South Georgia.

“We were relieved when we heard the mandate was coming because it took it out of our hands,” she said on the NAHC webinar. “We were doing everything we could to encourage vaccination.”

Ponder-Stansel said her agency experienced operational issues when local health systems demanded proof of vaccination. The agency has 76% of staff vaccinated in Florida and 36% in Georgia, with many caregivers expressing “strong feelings” on the vaccine, she said.

She and other providers said that having other large employers also fall under the federal mandate might alleviate their retention and hiring problems, because employees who leave health care over vaccination won’t have as many other
places to turn. Now, retail and other jobs will also require proof of vaccination or a negative test.

“When you level the playing field from a jumping off capacity, that was very helpful,” said Ken Albert, president of Androscoggin Home Healthcare + Hospice, based in Maine, which has already instituted a state vaccine mandate for health care providers.

Neal Kursban, CEO of Family and Nursing Care in Maryland and the District of Columbia, said that 94% of his company’s 1,400 caregivers are vaccinated—and the push will now be on getting shots to the last few. Even if you don’t feel strongly about the vaccine, he said, it makes business sense.

“I think it’s a no-brainer that clients want vaccinated caregivers … and as a business person, when they ask for that I want to find a way to get to yes.”

Will Vail, another lawyer with Polsinelli, said when it comes to state and local mandates versus the new federal manadate, providers should “figure out which are applicable to you. … The one that creates the most restriction on employers or protection for employees is the one you should follow. If you do that, you shouldn’t see any contradiction.”

When It Happened:

July 29, 2021
The administration mandates that on-site federal employees must attest to vaccination status

Aug. 18, 2021
Vaccines mandated for staff at 15,000 Medicare- or Medicaid-funded nursing homes

Sept. 9, 2021
Pres. Biden announces current mandate via CMS and OSHA; federal contractors also mandated to vaccinate