For the most part, home health operators covered by the Medicare Conditions of Participation (CoPs) haven’t been overly against the recently unveiled COVID-19 vaccine mandate from the U.S. Centers for Medicare & Medicaid services.
“As we sit here today, I think we have all the protocols and processes in place to manage through this and to support our workforce, as we move into a more robust vaccine environment,” LHC Group Inc. (Nasdaq: LHCG) President Joshua Proffitt said this week at the Credit Suisse Healthcare Conference.
It’s increasingly unclear if that confidence will be put to the test, however.
Missouri, Iowa and eight other states have filed a lawsuit against President Joe Biden and key administration officials over the CMS requirement that health care workers are vaccinated against COVID-19 as a condition of doing business with Medicare or Medicaid. Their nearly 60-page complaint — filed in the U.S. District Court for the Eastern District of Missouri — argues the mandate is unlawful and would hurt the 76,000 providers affected by it.
“The plaintiff states seek to end this dragooning of our states’ health care heroes,” the complaint reads. “Critically, the CMS vaccine mandate also threatens to exacerbate an alarming shortage of health care workers, particularly in rural communities, that has already reached a boiling point.”
Nebraska, Arkansas, Kansas, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire are the other plaintiff states. Kansas is the only one in the group of 10 led by a Democratic governor.
“Kansas health care facilities and their employees are already facing hardships due to the stresses of the pandemic and the current labor shortage,” Kansas Attorney General Derek Schmidt said in a statement. “Placing this additional mandate on health care facilities and employees will exacerbate this problem and will likely lead some facilities – particularly those in underserved, rural areas – to close due to an inability to hire sufficient staff.”
Specific Biden administration officials named in the complaint include U.S. Department of Health & Human Services (HHS) Secretary Xavier Becerra and CMS Administrator Chiquita Brooks-LaSure, along with Meena Seshamani and Daniel Tsai, who head the Medicare and Medicaid programs, respectively.
CMS released emergency regulations related to COVID-19 vaccinations for health care workers last week. The Occupational Safety and Health Administration (OSHA) did so as well for companies that employ 100 or more workers.
Under the CMS regulations, health care providers must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine, or a one-dose COVID-19 vaccine, prior to providing any care, treatment or other services by Dec. 5. Staff must be fully vaccinated by Jan. 4, 2022.
Judging from states that have already enacted mandates on their own, Biden administration officials have said they do not expect mass resignations in response to the CMS regulations.
“Where requirements have been implemented, we have not seen widespread resignations in the health care workforce,” a senior CMS official said during a White House press briefing. “In fact, we know that the requirements are an essential tool to protect patients and health care personnel.”
Proffitt echoed that idea, noting that LHC Group has not seen a mass exodus of workers in states with vaccine requirements. LHC Group delivers home health, hospice and other services across 37 states overall, employing roughly 30,000 workers.
“We track and monitor very closely leading up to the go-live of the mandate, pre- and post-, what kind of labor disruption [we] had,” Proffitt said. “And we really haven’t had any real upticks in turnover, with the exception of a little bit in the home- and community-based services (HCBS) in New York, because that workforce, you know, can go do other things.”
Even holdouts in the more clinical workforce typically opt to get vaccinated when nearing a deadline, he added.
“Once it gets to the deadline, they tend to get vaccinated,” Proffitt said. “And then kind of fall into that compliant group, or they fall under an exemption.”
The CMS mandate does not include a testing opt-out, and it applies to all health care workers, even if they’re not in a patient-facing role. Full-time telework staff are exempt.
Because they are not always covered by CoPs, HCBS providers, assisted living facilities, group homes and physician offices in some states are not subject to the mandate. CMS is allowing for religious exemptions.
Earlier this week, the U.S. Fifth Circuit of Appeals imposed a stay order on the OSHA rule in response to suits filed by several states and some private companies.
The White House said it will defend the CMS and OSHA mandates, and it urged employers not to delay their vaccine efforts amid the ongoing legal battles.
