Situation Report | October 11, 2021
Providers work to universally vaccinate, but Governor’s “cliff” risks huge service void
Home care and hospice providers continued working in an all-out effort last week to encourage and assist vaccination of all remaining unvaccinated personnel. State regulations called for home care and hospice staff to have at least the first vaccination shot by last Thursday, October 7, under the Governor’s “”vaccinate or be terminated” (cliff) approach.
Armed with data from the Home Care and Hospice Vaccination Mandate Impact Survey that HCA conducted in September, the Association continued to outline for providers, the Governor’s office and the media, the projected vaccinated and unvaccinated status across the sector, and the projected implications of the Governor’s “cliff” approach for potential workforce and service impact.
As Thursday’s deadline came, HCA was working anew to update home care’s vaccinated and patient service status. On Saturday, the New York Times reported data from the state (presumably as of Friday), indicating achievement of an 86% vaccinated rate among home health aides, with 34,000 aides unvaccinated and presumed out of service. HCA cannot independently corroborate these numbers, but they are reasonably within the range anticipated by the Association’s surveys.
However, HCA suspects the 34,000 may be understated because, throughout the week, the state Department of Health (DOH) was sending HCA lengthy lists of providers who had yet to reply to the state’s recent vaccination-related HERDS Survey, and had asked for the Association’s assistance with outreach to the listed providers.
Further, in gauging the impact of these 34,000 unvaccinated/out-of-service aides is a compounded number of patients affected by the loss of each of these aides. The impacted patient number is perhaps two to four, and in some cases five times the number of aides depending on the practice patterns in the region for number of patients per aide.
Moreover, these measures do not reflect the impact from the number of nurses and therapists now out of service due to the mandate, plus the current number of religious objectors whose exemption may only be temporary, or the impact to hospital discharges, admissions and readmissions from this displacement of home care. All these consequences will be felt.
Leading up to the October 7 deadline, HCA was in daily contact with members across the state to track provider/staff status, vaccination rates, numbers unvaccinated, provider needs, and contingency planning. Additionally, HCA kept the Governor’s office and DOH situationally apprised, and continued to press to replace of the Governor’s “vaccination cliff” with a more responsible and appropriate methodical phase-up to the vaccination goal. This, HCA argued, would mitigate service loss, enable higher vaccination rates to be reached and give the chance to preserve more of the home care/hospice workforce.
HCA also urged action on key recommendations the Association has been pressing since August, which would help support providers in their vaccination goals and service capability. Recommendations include restoration of regulatory and procedural flexibility from the COVID-waivers, provision of funding support from the $1.6 billion community service funding in the state budget, suspension of new mandates like the Independent Assessor and the Licensed Home Care Services Agency Request for Offers, leveling of the vaccination playing field, and others.
Throughout the week, media from around the state, television, radio, written and online press, lit up the concerns for home care workers, service loss and patients. HCA’s perspective and the Association’s data was sought from media sources statewide, including ABC, NBC and FOX TV and web, the New York Times, NY Post, Newsday, The Empire Report, local area TV stations in Buffalo, Syracuse, Utica, NYC, Rochester and Long Island, WGY Radio, the Capital Bureau’s statewide radio feeder, and more.
HCA worked continuously to provide educational and advocacy messages out to the public and state officials, and to assure the public of home care’s commitment to vaccination of workers, and most importantly to patient care and safety under the Governor’s plan.
Yesterday (Sunday, October 10), HCA addressed the Governor’s office once again, updating key individuals on the status of the system, and appealing for their engagement to support providers, workers and patients in vaccination efforts, including a shift from the cliff to HCA’s phase-up approach. HCA also updated a number of media sources on the status of the system.
Responses Needed for Updated Vaccination Mandate Impact Survey
HCA has initiated a critical survey of providers to determine their vaccination and worker status in the aftermath of the mandate, and sent this in a Friday alert. It is critical that we hear from ALL HOME CARE AND HOSPICE PROVIDERS in reply to this survey!
Please COMPLETE THE SURVEY NOW. This brief eight question survey will take approximately 4 minutes to complete and responses are due by close of business on Wednesday, October 13.
Stay tuned for HCA updates later today and throughout the week ahead.
Please alert HCA to your service gaps and other implications of the vaccine policy and compliance, as this will greatly assist our advocacy on your behalf!
Update on Court Action Related to Vax and Religious Exemption
A decision was rendered Friday, October 8 in the Serafin case, involving the Temporary Restraining Order (TRO) in place relating to the right of an employee to exercise a religious exemption to the state’s emergency vaccination mandate. In Friday’s decision, Judge McDonough lifted the TRO and denied the preliminary injunction requested by the plaintiffs. This decision does not impact the federal court decision (Dr. A v Hochul) which has imposed a comparable TRO relating to the religious exemption. Since the federal decision is still awaiting further court action, the TRO relating to religious exemption remains in place. That TRO remains in place until October 12, 2021.
Prior to the end date of the federal (Dr. A v Hochul) TRO (10/12/21), the Court will decide whether to either let the TRO expire, to extend the date of the TRO, or to issue a longer term preliminary injunction. In a separate federal case, We the Patriots v Hochul, the Second Circuit Court of Appeals will again consider the religious exemption on October 14.
In the most recent rounds of the various Court decisions, the state is not making new arguments, but instead has been presenting evidence in the form of affidavits testifying as to how many workers have been vaccinated, etc. Needless to say, the Court decisions over the next few days should provide some greater clarity on whether the religious exemption will remain in place.
There are also a number of new court challenges.
Specifically, there is a new case in the Northern District, Dr. Doe v Hochul, Case No. 3:21-cv-01078. It also seeks injunctive relief allowing a religious exemption to the vaccine mandate. The plaintiffs applied for a TRO on October 4, but the Court has not acted on that application yet. There is also a “class action” lawsuit filed in Jefferson County, Nurse A v Hochul; Jefferson County Index No. EF2021-002543 that also challenges the vaccine mandate on religious grounds. The plaintiffs in that case have not applied for an injunction yet.
HCA will keep providers updated as more in learned.