State Adopts Broad Emergency Vaccination Mandate

Situation Report | August 30, 2021

Requests DOH Reconsiderations for Home Care based on HCA Testimony

After significant discussion, the state Public Health and Planning Council (PHHPC) acted to adopt the State Department of Health’s (DOH) emergency regulatory proposal to broadly mandate vaccination of personnel in health care settings (“covered entities”).

In a critical validation of home care and of HCA, the Council also specifically asked the Department to come back within the 90 day emergency period with proposed modifications and/or other proactive responses to the concerns and recommendations levied by HCA.

The DOH proposal only surfaced last Monday with virtually no prior vetting.

The “entities” covered by the vaccination mandate include:

  • General hospitals
  • Nursing homes
  • Diagnostic and treatment centers
  • Certified home health agencies
  • Licensed home care services agencies
  • Hospices
  • Long term home health care programs
  • AIDS home care programs
  • Limited licensed home care services agencies
  • Adult care facilities

The regulations require 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).

The HCA Board and staff worked in the limited window allowed by the Department to develop a comprehensive letter delivered today by HCA President Al Cardillo to the PHHCP and State Health Commissioner Zucker that raised vital considerations with the proposed vaccination policy, and offered recommendations providing for mitigation and support for home care and hospice.

In his opening, Cardillo affirmed HCA’s “unwavering commitment to continue to work with the state, the localities, the federal government and all sectors to promote the vaccination of the workforce and patient population, as well as other patient/worker safety measures to contain COVID and its variants, and promote the public health.” He then proceeded to layout the serious concerns with the Department’s proposal and, for each, he offered concrete recommendations.

The areas HCA targeted included:

  • The already emergency-level workforce shortage in home care/hospice and the unsustainability of a worsened situation.
  • Concerns about worker migration and flight from home care/hospice and the importance a level playing field to avoid incentivizing worker departures to other settings where mandates wouldn’t apply.
  • The need for immediate and responsive program and fiscal support for home care and hospice in the wake of the pandemic (and any new mandates), including the targeting of funds from the $1.6 billion allocation in the 2021 state budget for home and community based services.
  • Tabling and suspension of counter-productive Medicaid Redesign Team actions that have yet-to-be implemented (and which HCA asked be held) such as the Independent Assessor for home care and managed long term care, and the Request for Offers (“RFO) for LHCSAs, both of which Cardillo argued were formulated pre-pandemic, are completely out of step with the post-pandemic context, and pose further adversity to workforce loss and inefficiency if the state proceeds to mandate vaccination.
  • Continuation of COVID-era regulatory and procedural flexibility which has been steadily rescinded since the end of the emergency declaration and would is vital to agency and worker efficiency (helping to at least counter-act possible worker/efficiency losses under the mandate proposal).
  • Resetting of the timetable for home care vaccination and recognizing a more worker-centered process to encouraging and counseling for vaccination.
  • Clarification of medical exemptions allowed under the regulation (religious exemptions, which were permitted in the proposal language released Monday and cited in the August 23 HCA alert were removed from the proposal adopted).

Cardillo’s letter and oral testimony emphasized the vital roles that home care and hospice have played across the spectrum and throughout the pandemic, as well as the major efforts undertaken by HCA and providers statewide to promote and support industry-wide vaccination of the workforce and the patients.

Read HCA’s full letter to the Council.

Council members raised many questions about the regulations, including concerns mirroring those of HCA about inadvertent flight/migration of workers to settings outside of the regulation. Council Chair, Jeffery Kraut and other Council members also specifically asked DOH to return to the Council with proposed actions for addressing the HCA’s written concerns and recommendations. Their comments affirmed the critical role played by home care, the complexity of the vaccine issue in the home care context, and the concern of “unintended consequences” from the Department’s otherwise well-intended public health proposal.

The PHHPC meeting was picked up by multiple news outlets. Cardillo was also quoted saying, “We really encourage you to consider the shortage, in the emergency situation that we have, and to consider steps that would at least provide support for this area to be able to recruit and support the workforce during this period,” Cardillo said. “We would ask you to consider a reasonable and workable timeframe for implementing these provisions. I think if we work together, we can probably get there and get there in a very harmonious way.”

Click here to watch the PHHPC meeting.

Adopted as “emergency regulations,” the proposal takes effect immediately, and within 90 days must be either readopted by the Council under the normal regulatory and public comment process, or may be proposed again for another 90 day emergency approval.

Since the PHHPC meeting, HCA has alerted the Department and Governor’s office on the priorities HCA identified, and will advocate for DOH movement with the next 90 day resubmission.