As HCA continues its efforts at all levels to press accommodations for home care, hospice agency and employee vaccination under the state’s adoption of an emergency regulatory mandate, the U.S. District Court for the Northern New York District took action entering into the fray today, granting petitioners with a temporary restraining order on the regulations.
HCA is seeking input from agencies and hospices on how New York State’s COVID-19 vaccine mandate will impact the ongoing workforce shortage.
As HCA previously reported, the New York Health and Essential Rights Act (NY HERO Act) requires employers to adopt and maintain an airborne infectious disease exposure prevention plan to be implemented when an airborne infectious disease is designated by the New York State Commissioner of Health as a “highly contagious communicable disease that presents a serious risk of harm to the public health.”
While August 5 was the deadline for adopting such a plan, employers also have to provide the plan in writing to all employees by September 4.
The New York State Business Council advises: Currently, while employers must adopt plans as required by the law, no such designation has been made by the Commissioner and plans are not required to be in effect. It is possible, however, that with the increase in infections as the result of the COVID Delta variant, these plans could be activated.
The state Department of Labor has posted resources on the HERO Act, including The Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan and industry-specific templates.
The state Department of Health (DOH) posted a Dear Administrator Letter(DAL) that provides an update on home care and hospice regulatory waivers that were issued during the COVID-19 pandemic.
The DAL is available on the DOH home care website.
The DAL notes that the COVID-19 State of Emergency in New York ended on June 25, 2021 and addresses the resumption of routine services for home care and hospice agencies, and under what limited circumstances DOH will continue to exercise ‘enforcement discretion’ in recognition that providers need time to restart and complete activities previously suspended.
Providers are advised to immediately initiate efforts to restart activities and be able to demonstrate to DOH surveyors that there is a plan in place for compliance as soon as practicable.
The DAL addresses the following areas:
- Supervision of home care aides
- In-Home Initial Assessments and Reassessments
- Annual Performance Evaluations
- Pre-Employment Health Assessments for New Employees and Annual Health Assessments
- Supervised Practical Training
- In-Service Training for Personal Care, Home Health and Hospice Aides
- Home Care Aide Training Program Completion and Submission of Schedules
- Alternative Competency Demonstration for Personal Care Aides
Please note that as it relates to hospice, the DAL mentions that the U.S. Centers for Medicare and Medicaid Services (CMS) has waived the requirement that hospice aides receive at least 12 hours of annual training. CMS has modified the regulation that requires hospices to annually assess the skills and competence of all individuals furnishing care and provide in-service training and education when required. Specifically, CMS postponed the annual assessment requirement until the end of the first full quarter following the declaration of the end of the federal PHE. HCA is verifying how these federal waivers currently affect hospices in New York State.
HCA has communicated with DOH, the Legislature and the Executive and has sent regulatory relief recommendations to the state’s key decision-makers. HCA is still reviewing this DAL to determine which relief measures need any further action and which have not been addressed. HCA will continue to monitor all state and federal guidance related to regulatory relief and communicate updates with the membership as more is learned.
The August 26 meeting agenda of the Public Health and Health Planning Council (PHHPC) Special Codes, Regulations and Legislation Committee includes the consideration of an Emergency Rule that would mandate vaccines for “personnel” of Certified Home Health Agencies (CHHAs), Long Term Home Health Care Programs, Acquired Immune Deficiency Syndrome (AIDS) Home Care Programs, Licensed Home Care Service Agencies (LHCSAs) and Limited LHCSAs; hospices; and adult care facilities by October 7 (with limited medical and religious exemptions).
Read the Rule here.
The Rule states that “covered entities” will have to continuously require personnel to be fully vaccinated against COVID-19, with the first dose for current personnel received by October 7, 2021 (September 27, 2021 for general hospitals and nursing homes).
Agencies will be required to obtain documentation of such vaccination and retain it in personnel or other appropriate records in accordance with applicable privacy laws.
Medical exemptions to the vaccine requirement are allowed if any licensed physician or certified nurse practitioner certifies that immunization with the COVID-19 vaccine is detrimental to the health of the member of a covered entity’s personnel, based upon a pre-existing health condition.
Covered entities will be able to grant a religious exemption for COVID-19 vaccination for personnel if they hold a genuine and sincere religious belief contrary to the practice of immunization.
Entities must also review and make determinations on requests for medical and religious exemptions, which must also be documented in personnel or other appropriate records, as well as any reasonable accommodations to protect the well-being of the patients, residents and personnel in such facilities.
Upon the request of the state Department of Health, covered entities must report and submit documentation for the following:
- the number and percentage of personnel that have been vaccinated against COVID-19;
- the number and percentage of personnel for which medical exemptions have been granted;
- the number and percentage of personnel for which religious exemptions have been granted; and
- the total number of covered personnel.
The Rule also adds documentation of COVID-19 vaccination or a valid medical or religious exemption to the personnel requirements for CHHAs, LHCSAs and hospices.
These proposed emergency regulations will become effective upon filing with the Department of State and will expire, unless renewed, 90 days from the date of filing.
HCA is currently reviewing this major proposal and its ramifications from all sides with the HCA Board of Directors. This includes critical information that we will send and that must be considered by the PHHPC in weighing these actions on home care, as home care vaccination is an extremely complicated matter.
Regardless of the decision it takes, the Council and the state must attend to the urgent access and support needs in home care, and direct its COVID-related policies in the full and necessary support of this sector, its workforce, agencies and patients.
HCA will follow with an update to the membership on the proposal’s status and the imminent actions the Association takes with the Council.
Today, the state Department of Health (DOH) posted the 2019 Certified Home Health Agency (CHHA)/Long Term Home Health Care Program (LTHHCP) Statistical Report and 2019 Hospice Cost and Utilization Report on the Health Commerce System (HCS).
Access DOH’s Dear Administrator here.
The reports must be submitted by October 8, 2021.
All CHHAs, LTHHCPs and hospices are required to complete and submit the 2019 reports.
Failure to submit all required information will subject the agency to enforcement action, resulting in the agency being liable for civil penalties for violations under Article 36 (CHHAs and LTHHCPs) or Article 40 (hospices) of the Public Health Law and New York State Medical Facilities Code.
DOH encourages agencies to enter and submit data as early as possible. Agencies that wait until the last week to enter data may encounter extended system delays and wait times for support due to limited system and personnel resources.
Please note that these reports are different from the Home Care Cost Report, which must be completed by CHHAs, Licensed Home Care Services Agencies and Fiscal Intermediaries. The Home Care Cost Report was posted on August 16 and is due November 15, 2021.
Questions and requests for assistance should be submitted to HCStatRpts@health.ny.gov.
HCA confirming impact of separate OSHA emergency rule; join us for July 13 webinar sorting it out
Importantly, DOL clarifies that while employers must adopt plans … the plans are currently “not required to be in effect.”
The state Department of Labor (DOL) has now posted model Infectious Disease Exposure Prevention Plan templates and an Airborne Infectious Disease Exposure Prevention Standard for implementation of the NY HERO Act, starting the clock on employer compliance deadlines.
As extensively reported, the New York Health and Essential Rights Act (NY HERO Act) was signed into law on May 5, 2021 creating major airborne infectious disease control workplace requirements for most employers (those with at least 10 employees) in New York State.
The law was amended in June, requiring employers to adopt the plans within 30 days after the date that the model standards are published, as they were this week. DOL today confirmed to HCA that August 5, 2021 is, therefore, the deadline for New York employers to adopt an airborne infectious disease exposure plan.
Employers can choose to adopt the applicable policy template/plan provided by DOL (see the templates available here) or establish an alternative plan that meets or exceeds the standard’s minimum requirements. Note that DOL has not yet posted a template for the health care sector.
Employers must also provide the plan in writing to all employees in English and the primary language of the worker(s) within 30 days of adopting the plan, within 15 days of reopening due to airborne infectious disease-related closure, and to all new employees upon hire.
The newly posted standard outlines: the elements of a written exposure prevention plan and requirements for verbal review of the plan with employees; monitoring and enforcement compliance; and specific workplace exposure controls that must be included in the exposure prevention plan, such as health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection, and personal protective equipment. It also outlines anti-retaliation provisions.
Intersection with OSHA Emergency Temporary Standard?
Complicating matters is the fact that the federal Occupational Safety and Health Administration (OSHA) has separately posted an Emergency Temporary Standard (ETS) rule requiring employers to develop and implement a plan for identifying and controlling COVID-19 hazards in the workplace. HCA has been seeking clarification on how the NY HERO Act and OSHA rule interrelate.
According to one analysis, DOL’s “Airborne Infectious Disease Exposure Prevention Standard” states that the standards do not apply to: “Any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”
In a memo today, HCA’s government-affairs firm, Hinman Straub, interprets this to mean that providers “that are subject to the Emergency Temporary Standards (“ETS”) adopted by OSHA are excused from the NYS HERO Act obligations.”
“This is important guidance from the NYS DOL that clarifies any conflicting obligations under these laws,” the Hinman Straub memo adds. “More importantly, under the ETS, a health care provider, as defined by OSHA, is still obligated to ensure that there is a plan and it is in effect.”
HCA is confirming this interpretation directly with DOL.
July 13 Webinar to Help Sort Things Out
We remind members that we are holding an upcoming webinar on July 13 from 2 to 3 p.m. to discuss the OSHA ETS; this webinar will specifically cover how the OSHA rule intersects with state or local mandates and guidance, like the NY HERO Act. Register today.
Many Other Questions
This week’s posting of the NY HERO Act standards and model exposure prevention plans leaves a lot of still-unanswered questions for providers and other employers in New York State.
DOL was tasked with developing industry-specific templates, which it did for a variety of sectors, but none are posted for health care.
The newly posted standard includes general provisions for when the requirements go into effect and when plans must be activated. Each employer shall establish a written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious agents in “the event of an outbreak of an airborne infectious disease” that has been designated.
In response to an inquiry today, a DOL representative indicated that “currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect.”
Workplace Safety Committee
In addition to the new standards and requirements for Infectious Disease Exposure Prevention Plans outlined above, the NY HERO Act also requires employers to establish and maintain a joint labor-management workplace safety committee with a range of duties and authorities.
The requirement for a joint labor-management workplace safety committee takes effect 180 days after the law was signed on May 5, meaning it is required by November 1.
HCA will report back to the membership as we gain answers about general applicability questions as well as any specifics for home and community-based services and employers.