The Department of Health, Codes Committee of the Public Health and Health Planning Council (PHHPC) has just adopted the Department’s emergency regulation that will require covered providers, including LHCSAs, to vaccinate their healthcare staff. CDPAP is not covered by this regulation. We summarize the key points here:
- Contrary to the proposed regulation that was published by the Department only a few days ago, the final regulation (see final regulation HERE) does not allow for workers to avoid vaccination on the basis of a religious reason. The only remaining basis for a worker to decline the vaccine is to provide a medical reason.
- “Covered entities” under the regulation include any Article 28 licensed entity, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers, any Article 36 entity (including CHHAs, LHCSAs, LTHHCPs, AIDS home care programs), hospices, and adult care facility licensed by the DOH. Standalone EMT companies are not covered. However, any EMT affiliated with a hospital will be covered.
- Covered personnel include “all persons” employed or affiliated with a “covered entity,” whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients, or residents to the disease. This definition is a bit vague and has garnered a lot of questions about whether LHCSA office staff would be covered. The PHHPC did not discuss LHCSAs specifically today, but they did discuss other settings where non-caregiver staff would be required to vaccinate. Based on that discussion by the PHHPC, it appears that office staff would be required to vaccinate because office staff have the “potential” to expose aides to COVID. This issue, however, will be subject to further guidance from the State. The PHHPC urged the Department to address this question in a DAL.
- The medical exemption will be allowed for workers who present a certification from a licensed physician or a certified nurse practitioner that the vaccine “is detrimental to the health” of the employee, “based upon a pre-existing health condition” of that employee.
- The regulation, once effective, will supersede Executive Order 16, which had mandated vaccination of certain hospital and nursing staff, including contractors who went into congregate settings (such as home care staff that service patients in nursing homes or assisted living facilities).
- Workforce shortages were raised as a concern during today’s PHHPC meeting, when this emergency regulation’s adoption was discussed. The Council was urged to consider an exemption for providers who – despite efforts to vaccinate staff – would have workforce shortages if their staff refused to vaccinate. The Council nonetheless adopted the regulation without making any exceptions for these staff shortage scenarios, but it did urge the Department to consider and address this concern.
- There was a brief discussion by the Council regarding enforcement and penalties for noncompliance. The Department expects providers to be the “gatekeepers” and ensure that any medical exemption request submitted by an employee is valid. It is daunting for providers, who are already busy with the ordinary demands of operating a home care agency, to think about policing physicians’ notes and ensuring that those physicians are accurately recommending a medical exemption for their aide patients. However, the Department expects the providers to do their due diligence and ensure that any physician notes are valid and based on “generally accepted medical standards.” The Department reinforced that it would audit providers for compliance, but it is not clear how they would do that given their limited resources. Insofar as penalties are concerned, the Department attorney alluded to, but did not specifically state, that the Department could initiate enforcement proceedings against noncompliant agencies, and such enforcement proceedings could include monetary penalties. LHCSAs looking to apply through the RFO in several months should diligently avoid incurring any liability or penalties through the Department, as such penalties will surely be subject to review in the RFO.
- For home care, the deadline for compliance with these mandates is October 7, 2021. The first vaccine must be received by all covered employees by October 7, unless an exemption applies. Thereafter, the aide will not be able to work. For office staff who refuse to vaccinate, providers may consider moving such individuals to remote work environments.
Upon the request of the DOH, covered entities will be required report and submit documentation regarding the following:
- the number and percentage of personnel that have been vaccinated against COVID;
- the number and percentage of personnel for which medical exemptions have been granted; and
- the total number of covered personnel.
With the Council having adopted the emergency regulation today, the regulation will take effect immediately once it is recorded with the Department of State. The recording could be done today or by the end of the week. The October 7 deadline for home care providers is fast approaching though. Thus, we encourage all providers to promptly work on implementing these requirements. The shortage of home care caregivers has never been more acute, and it will take creative and prompt efforts by providers to persuade and vaccinate their workers. There are many cultural and deep-rooted reasons that have kept as many as 75% of workers of some agencies from vaccination thus far, and agencies will have to understand and break through those cultural divides in order to get their staff vaccinated. Please reach out to us if you need any assistance in this regard.
The Department requires all LHCSAs to adopt and implement policies and procedures to ensure compliance with the foregoing requirements. Our attorneys and consultants can assist your teams to prepare these policies.
If you have any questions about this alert, please do not hesitate to reach out.