powered by LeadingAge New York
  1. Home
  2. » Topics
  3. » Coronavirus Resources
  4. » Vaccination Information
  5. » DOH Issues Vaccine Mandate Regulations for Nursing Homes, ACFs, Home Care, ADHC, D&TCs, and Hospitals

DOH Issues Vaccine Mandate Regulations for Nursing Homes, ACFs, Home Care, ADHC, D&TCs, and Hospitals

The Department of Health (DOH) issued emergency regulations last week implementing a COVID-19 vaccine mandate for personnel in all entities licensed under Article 28 of the Public Health Law (including nursing homes, hospitals, and diagnostic and treatment centers), home care agencies licensed or certified under Article 36, hospice programs licensed under Article 40, and adult care facilities (ACFs) licensed under Article 7 of the Social Services Law. We have also received clarification that it applies to adult day health care (ADHC). The regulations supersede the Aug. 18th order mandating nursing home vaccinations. The regulation is in effect and requires existing personnel in nursing homes and hospitals to have their first dose by Sept. 27, 2021 and personnel in other covered providers to have their first dose by Oct. 7, 2021. The regulation will remain in effect for 90 days, at which time it will be reviewed again by the Public Health and Health Planning Council (PHHPC) for renewal as an emergency regulation or for permanent adoption.

It is notable that the regulation approved by the PHHPC is not identical to the one initially posted. The revised regulation does not include a religious exemption. The revised emergency regulation retains a medical exemption:

“If any licensed physician or certified nurse practitioner certifies that immunization with COVID-19 vaccine is detrimental to the health of member of a covered entity’s personnel, based upon a pre-existing health condition, the requirements of this section relating to COVID-19 immunization shall be inapplicable only until such immunization is found no longer to be detrimental to such personnel member’s health. The nature and duration of the medical exemption must be stated in the personnel employment medical record, or other appropriate record, and must be in accordance with generally accepted medical standards, (see, for example, the recommendations of the Advisory Committee on Immunization Practices of the U.S. Department of Health and Human Services), and any reasonable accommodation may be granted and must likewise be documented in such record. Covered entities shall document medical exemptions in personnel records or other appropriate records in accordance with applicable privacy laws . . .”

While LeadingAge NY appreciates the importance of vaccination in the protection of vulnerable populations, we are also acutely aware of member concerns regarding serious workforce shortages. Several members have voiced concerns about losing staff as a result of the mandate. We have been discussing workforce concerns with DOH, the Legislature, and the Executive for some time now and expressed your concerns in this letter to the PHHPC in response to the emergency regulations.

Several questions have been raised in response to the regulations, and we have submitted them to the Department. What type of staff and contractors are covered by the mandate remains somewhat unclear. During the discussion at the PHHPC meeting, the DOH counsel indicated that any physician who delivers services in a nursing home or hospital must be vaccinated. She also noted that the Department is closely following the precedent of the flu vaccination/masking regulation in its definition of covered personnel. We will keep members apprised of any further clarifications we receive.

This new requirement is unfolding at a time when there is a flurry of activity regarding booster shots and shots for the immunocompromised. DOH issued a one-time Health Emergency Response Data System (HERDS) survey to nursing homes and ACFs to assess readiness, which is due today, Aug. 31st. Unfortunately, there does not seem to be a plan to utilize the federal long term care pharmacy partnership for these additional vaccinations, and thus DOH wants to ensure that providers are prepared and have access to necessary resources. The New York City Department of Health and Mental Hygiene (NYC DOHMH) has also been working with NYC providers to assess readiness.

Nursing home members should also be aware that the Centers for Medicare and Medicaid Services (CMS) has announced that it will be publishing regulations in September to mandate vaccination for nursing home personnel. We will keep members apprised of any developments.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828