Layer Upon Layer of Regulation’: Breaking Down the CMS Vaccination Mandate

Home Health Care News  
By Andrew Donlan | November 8, 2021
 
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Since the Centers for Medicare & Medicaid Services (CMS) released its interim emergency regulation relating to the federal government’s vaccine mandate last Thursday, more clarity has come to the surface.
 
Specifically, CMS has made clear what health care providers are included, what individuals can be exempt and how the mandate will be enforced.
 
What came as somewhat of a surprise was the fact that home- and community-based services (HCBS) providers were not included in the mandate. It instead only applies to providers regulated under the CMS Conditions of Participation (CoPs), which includes home health agencies, and, overall, nearly 76,000 providers and 17 million health care workers.
 
No one knows the exact thought process behind that decision for CMS, Darby Anderson, the chief strategy officer at Addus HomeCare Corporation (Nasdaq: ADUS) and vice chairman of the Partnership for Medicaid Home-Based Care (PMHC), told Home Health Care News.
 
“I assume it was a decision of where to draw the line,” Anderson said. “Using CoPs makes sense, as it is a clear way to define the service and personnel providing it consistently across states which have varied definitions on HCBS personnel types. It is helpful from the perspective of allowing waivers and testing options to keep staff employed.”
 
Because of the enormous complexity that goes into an interim emergency regulation like this one, leaving out HCBS providers allowed CMS to be more concrete with its guidelines.
 
But between the CMS mandate, the Occupational Safety and Health Administration’s (OSHA) coinciding guidelines for private businesses and state mandates, there is a lot for providers to sort through.
 
“It is layer upon layer of regulation and requirements that are not always easy to understand,” Emina Poricanin, managing attorney of Poricanin Law, told HHCN.
 
The CMS mandate doesn’t just apply to patient-facing workers, but full-time telework staff are exempt. It also does not allow for opt-outs, where an individual can instead be tested weekly in lieu of being vaccinated.
 
That could potentially squeeze some workers out of home health care and other health care settings. It could also give providers not included in the emergency regulation an edge, if they are OK with employing unvaccinated workers.
 
Along with HCBS providers, assisted living facilities, group homes and physician’s offices are not subject to the mandate.

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