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Biden Vaccine Mandate Risks Worsening Home Health Staffing Woes

Sept. 10, 2021, 7:30 PM

The Biden administration’s new Covid-19 vaccination requirement for most health-care employees could allow home health agency workers who don’t want the jab to seek employment at other agencies that may not be subject to the mandate.

If unresolved, the situation could exacerbate a home health staffing shortage and further destabilize the industry’s labor force through increased employee turnover, said Bill Dombi, president of the National Association for Home Care & Hospice. In California, several hundred thousand workers could be affected, Dombi said.

“So long as you give home care workers an opportunity to go continue their work in a home care setting where they don’t need to be vaccinated, we’re going to see these concerns continuing, that the workforce just flees one employer and goes to another,” Dombi said Friday in an interview.

The vaccine mandate announced Thursday would apply to a wide range of health-care companies that are subject to Medicare “conditions of participation,” the quality-of-care standards that providers must meet in order to treat Medicare beneficiaries. Medicaid has largely adopted these Medicare conditions of participation, Dombi said.

But most of the $100 billion-plus in Medicaid home health care services provided annually—which represent the vast majority of all home health care services—are not subject to Medicare conditions of participation, Dombi said.

That’s because Medicaid home health services are often provided through private duty nursing, personal care services, and Medicaid’s home and community-based waiver programs, Dombi said. “It’s up to states to determine what the requirements are for those providers of care,” Dombi said. “And few states have made the Medicare conditions of participation the applicable standards.”

“So you’ve got hundreds of thousands of home care workers delivering care under those programs that do not operate under conditions of participation,” and “wouldn’t be subject to mandatory vaccination requirements,” Dombi said.

The NAHC has supported vaccinations for industry workers, and are “very concerned that a material number of home health care workers” aren’t being vaccinated, Dombi said. The NAHC will be raising its concerns in the coming weeks with the Department of Health and Human Services and the Centers for Medicare & Medicaid Services .

Attorneys for the Biden administration will have to decide if they have the authority to apply the “conditions of participation” standard to all home health providers in the Medicaid program, Dombi said.

“I don’t know whether the lawyers in HHS have explored that question of whether there are additional routes to a mandate besides ‘conditions of participation.’ We would be asking them to look at that question if they haven’t already looked at it,” Dombi said.

The CMS did not respond to a question about Dombi’s concerns in time for publication of this story.

Interim Final Rule

The administration’s vaccine requirement for health workers will come through an interim final rule the CMS expects to issue in October. Stakeholders will have a chance to comment on it before it is finalized.

“Health care workers employed in these facilities who are not currently vaccinated are urged to begin the process immediately,” the CMS said in a statement Thursday.

The new mandate goes further than Biden’s Aug. 18 requirement that nursing home staff get vaccinated. Nursing homes have been the hub of Covid-19 infections, leading to the death of nearly 187,000 residents, according to the Kaiser Family Foundation.

Policy analysts at the Center for American Progress called for the federal requirement Aug. 6, arguing it would “protect vulnerable patients, set a positive example for other employers, and contribute to the national effort to contain the virus.”

—With assistance from Allie Reed

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com

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