State Issues Order Mandating Vaccination of Nursing Home and Hospital Staff
Last week, New York State issued an order mandating COVID-19 vaccination of hospital and nursing home workers. On Aug. 23rd, the State proposed emergency regulations expanding the vaccine mandate to adult care facilities (ACFs), licensed home care services agencies (LHCSAs), certified home health agencies (CHHAs), hospice, long term home health care programs (LTHHCPs), AIDS home care agencies, limited LHCSAs serving Assisted Living Programs (ALPs), and diagnostic and treatment centers.
The proposed regulation incorporates the language of the original order, so members should carefully review both documents. LeadingAge NY has communicated to the Department of Health (DOH) our concern that the mandates will further exacerbate the current workforce staffing crisis. We continue to inform the Department of the ramifications of the mandate and press them for resources and support to address workforce shortages. At this time, the order and regulation do not apply to personal care assistants serving in the Consumer Directed Personal Assistance Program (CDPAP), transportation or EMS providers, physicians' offices, or dental practices. Please note that there is no test-out option with either mandate.
Staff for nursing homes and hospitals are required to obtain a first dose of vaccine by Sept. 27th and will be required to be fully vaccinated to work in those settings. The emergency regulations require staff in home care, ACFs, and other settings to be fully vaccinated and to obtain their first dose by Oct. 7th. The following individuals are covered by the order and proposed regulation:
“All persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose, patients, residents, or personnel working for such entity to the disease.”
LeadingAge NY has posed inquiries to the Department regarding back office and telehealth staff, adult day health care (ADHC) and social day programs, and additional provider types.
The order and proposed regulation provide for medical and religious exemptions from vaccination. The vaccination requirement is not applicable if a physician or nurse practitioner certifies that immunization is detrimental to the health of the individual. In addition, a religious exemption must be granted if the individual holds a genuine and sincere religious belief contrary to immunization. Medical and religious exemptions must be documented, along with vaccination status. Providers may be required to report to the Department on the numbers and percentages of personnel vaccinated and exempt. Providers will also be required to develop and implement policies and procedures to ensure compliance.
In a call with DOH Commissioner Zucker last week, it was stated that there will likely be no further guidance on medical and religious exemptions, though several asked for it on the call.
Typically, an allergic reaction to an injectable vaccine or a significant reaction after the first dose would qualify for medical exemption from the COVID-19 vaccine. The Centers for Medicare and Medicaid Services (CMS) may provide more detail on medical exemptions when it issues regulations on the CMS vaccine mandate for nursing homes. LeadingAge NY's counsel, Hinman Straub, is researching and developing a template for members to utilize in establishing a religious exemption policy. We will provide that information as we receive it.
The order states that DOH will hold a videoconference hearing on Sept. 2nd to hear anyone with proof that failure to comply does not constitute a danger to the people of New York State. Members may attend or present if they have notified the Department. LeadingAge NY has submitted comments to the Public Health and Health Planning Council (PHHPC) for its Aug. 26th meeting on the proposed regulation, and we will continue to share member concerns and advocate for support and assistance to address workforce shortages with the Department and Commissioner.
CMS Announces Staff Vaccine Mandate for Nursing Homes
Last week, CMS announced that it is developing emergency regulations requiring staff vaccinations within Medicare- and Medicaid-participating nursing homes. CMS must go through the rulemaking process, which will take some time. It is expected that the regulations will be issued in September. LeadingAge National is advocating for a vaccine mandate across the health care continuum nationally so that staff will not migrate to other settings. LeadingAge NY will keep members informed of the status of this mandate as it unfolds.
Boosters and Additional Doses of mRNA Vaccine
DOH has issued new guidance on additional COVID-19 vaccine doses for the immunosuppressed. The recently released Health Advisory on additional doses, screening and consent form, and Frequently Asked Questions (FAQ) and checklist are available here, here, and here. Additional doses for the immunocompromised may be administered 28 days after administration of a second vaccine dose. Members should carefully review the guidance for this population regarding conditions appropriate for an additional dose, those who are and are not eligible, and timing of the vaccine with therapies.
The guidance also clarifies that administration of an additional mRNA dose is not appropriate for those who have received the Johnson & Johnson (J&J) vaccine. The Centers for Disease Control and Prevention (CDC) is currently working to ensure that follow-up doses for the J&J vaccine are in development.
While the decision to obtain an additional dose for an immunocompromised individual should be made with a physician and clinical team, per the guidance, there is no requirement for proof or prescription from the individual's health care provider. This is to prevent additional barriers to vaccination for this vulnerable population. The mandatory New York State COVID-19 Vaccine Form includes a self-attestation regarding eligibility for vaccination and must be completed prior to vaccination.
Booster Doses for Long Term Care and General Public
The CDC has also announced a plan to begin offering mRNA booster shots this fall pending Food and Drug Administration (FDA) evaluation and Advisory Committee on Immunization Practices (ACIP) recommendation. The booster shots could begin the week of Sept. 20th and would be permitted for individuals who are eight months past their second dose. Individuals who were fully vaccinated earliest in the vaccination rollout, including staff and residents of nursing homes and ACFs and other seniors, will likely be eligible for a booster.
Unfortunately, CMS has indicated that it will not bring back the federal Pharmacy Partnership for Long Term Care, which was the vehicle for vaccination of nursing home and ACF staff and residents earlier this year. Members should begin to reach out to their long term care pharmacies to establish a plan for booster vaccination.
It is anticipated that booster shots will likely be needed for people who received the J&J vaccine; however, more data is needed to make a determination. Administration of the J&J vaccine did not begin in the U.S. until March 2021.
Reimbursement for Third Doses of mRNA COVID-19 Vaccine
Effective Aug. 12th, CMS will pay to administer additional doses of COVID-19 vaccine consistent with the FDA Emergency Use Authorizations (EUAs), using Current Procedural Terminology (CPT) code 0003A for the Pfizer vaccine and CPT code 0013A for the Moderna vaccine. Medicare will pay the same amount to administer this additional dose as it did for other doses of the COVID-19 vaccine (approximately $40 each).
CMS will hold and then process all claims with these codes after it completes claims system updates (no later than Aug. 27th). More information is available here and here.
New York State has also updated its guidance regarding Medicaid reimbursement policy for the administration of COVID-19 vaccines authorized for emergency use and instructions for providers to bill the cost of administration of authorized COVID-19 vaccines. This includes reimbursement for third doses of the Moderna and Pfizer vaccine.
Policy is changing rapidly on vaccine issues. LeadingAge NY will continue to keep members apprised of all developments on the vaccine mandate front. We appreciate your continued dedication during this difficult time.
Contacts: Meg Everett, meverett@leadingageny.org, and Karen Lipson, klipson@leadingageny.org. Both can be reached at 518-867-8383.