Hospice Providers Press On with Staff Vaccines as Courts Ponder Mandates

As with the rest of the country, many hospice providers and their employees have mixed feelings about the federal vaccine mandates. Even those who welcomed the additional layer of protection for patients and staff are fretting about the possibility of losing workers. Recent court decisions on the interim emergency regulations have further muddied the waters.

U.S. District Court Judge Terry Doughty in Louisiana earlier this week entered a preliminary injunction to halt the U.S. Centers for Medicare & Medicaid Services (CMS) vaccine requirement for health care workers until the case is decided. A preliminary injunction is a temporary measure to maintain the status quo until the outcome of a case is decided.

The injunction stems from a suit brought by 14 states opposing the CMS requirement. The stay applies to every state in the union except for 10 in which the mandate is already blocked due to an earlier judgement from a federal court in Missouri.

A vaccine requirement from the U.S. Occupational Safety & Health Administration was also temporarily blocked by the courts. That regulation applies to all companies with 100 or more employees.

With the ultimate outcome uncertain, providers are left with the decision of whether to halt their efforts to comply with the pending rules or to continue in case the courts ultimately reinstate the mandate. Providers in some regions are also working to implement state-based regulations or their own corporate policies.

“[The National Hospice & Palliative Care Organization (NHPCO)] is closely monitoring litigation, and note that these are preliminary decisions that may evolve or be appealed,” Edo Banach, president and CEO of the NHPCO, told Hospice News. “While there is some confusion, we continue to strongly encourage vaccination and note the importance of understanding state requirements.”

The CMS rule required health care employers that receive Medicare or Medicaid reimbursement to implement a policy requiring staff to receive the first vaccine dose prior to providing care, treatment or services by Dec. 5, and fully vaccinated by Jan. 4, 2022. The court decisions will suspend these deadlines for the time being.

NHPCO has advised its members through a regulatory alert to prepare for the possibility of reinstatement, which could occur on short notice. The National Home Health and Hospice Association (NAHC) also advised its members to push forward with compliance.

“It remains possible that the District Court rulings will be reversed and that the original compliance deadlines will be held in place,” NAHC indicated in a statement. “While that outcome is not highly likely, a good faith compliance effort will be the best protection a provider can have against any enforcement action.”

The White House is certain to appeal these rulings, having pledged to defend the vaccine mandates against legal challenges. Many expect that the U.S. Supreme Court will eventually have the final word.

Providers themselves are applying a number of approaches as they wait for the legal battles to play out. While some implemented their own staff mandates prior to the state and federal government actions, most are strongly encouraging, but not requiring, vaccination at this point.

“As long as the vaccination mandate is suspended – LHC Group will not enforce compliance with the current CMS deadlines,” an LHC Group (NASDAQ: LHCG) spokesperson told Hospice News. “However, we continue to strongly recommend vaccination for each and every employee across the 37 states and the District of Columbia we serve, as it remains the best protection we have against the spread of COVID-19 and helps us maintain alignment with our obligation to do everything in our power to protect our patients and co-workers.”

The LHC Group spokesman also emphasized that given the company’s national footprint, they are implementing state-level mandates in some markets.

Florida-headquartered Alivia Care, which also operates in Georgia, is taking a similar approach. The company is urging staff to receive the vaccine, but is not terminating or suspending employees who have not complied, according to CEO Susan Ponder-Stansel. However, providers have other factors to consider in addition to government rules.

“Even if the mandate doesn’t happen, individual health care entities and even families are saying to us now, ‘don’t send the anyone in who’s not vaccinated.’,” Ponder-Stansel said. “So it’s going to become elementary, at some point that if you want to take care of patients, those people are going to want you to be vaccinated whether there’s a federal mandate or not.”

While the ongoing lawsuits address questions of constitutionality and jurisdiction, state vs. federal authority, potential economic burden and other factors, the prospect of losing staff is top of mind for most providers.

The hospice workforce has been dwindling even as demand for care rises. Factors such as retirement and burnout are leading some clinicians to leave the field. In a Hospice News survey earlier this year, 35% of hospice leaders indicated that the staffing shortage was their No.1 non-COVID related concern for 2021, compared to 16% who cited increased competition.

The pandemic has only made things worse. Hospices have seen rising turnover across the board during the pandemic, as has much of the health care sector. Slightly more than 20% of health care workers have considered leaving the field due to stress brought on by the pandemic, while 30% have considered reducing their hours, according to a study published in JAMA Network Open.

The plaintiff states’ court filing alleges that the vaccine regulations harm the states by exacerbating the labor shortage. Some stakeholders in the hospice space, including NAHC, have expressed concern that CMS to date has not offered any guidance to providers on how they should respond to unvaccinated employees or resignations that could impede their ability to provide care.

The Biden Administration in public statements has said health care officials do not expect mass resignations, based on employment numbers from states or employers who implemented their own requirements.

A survey by the Kaiser Family Foundation indicated that 5% of unvaccinated adults said they left a job due to a vaccine mandate, with more than a third of unvaccinated workers saying they would rather quit than comply. The Kaiser data were not limited to the health care space and inquired about individual employer requirements, rather than the federal action.

In the health care sector, Fierce Healthcare recently reported that a number of hospital systems that have voluntarily required vaccination indicated that they had lost between 1% and 6% of their employees. Hospice-specific data were not available. 

Despite the uncertainties over nationwide mandates, some hospice providers, such as HopeWest in Colorado, are moving forward with initiatives to ensure staff are vaccinated, citing the serious risk to the lives and safety of their employees, patients and families. 

“We are moving ahead with the same requirements for clinicians and non-clinicians. Science supports that the vaccines work — maybe not perfectly, but it’s all we’ve got,” Christy Whitney, CEO of HopeWest, told Hospice News. “Our hospitals are overflowing today with [emergency department] beds and diverting to out of town. In my opinion, it is not morally sustainable to not be clear with our position with our staff.  I have family members of staff dying every week.”