Hospices Learning to Navigate Referral Partner, Facility Vaccine Policies

The pandemic continues to ruffle feathers for hospices nationwide, most recently due to uncertainties about the future of federal vaccine mandates recently halted by the courts. Regardless of how the scales tip on those emergency regulations, hospices remain troubled about ensuring their access to patients, according to legal advisors in the health care sector.

Hospices have struggled to access patients in nursing homes, assisted living or other facilities throughout the pandemic. Patient access and staffing concerns have been tied COVID-19 effects, with hospices keeping a close eye on vaccination policies taking effect at a local and federal level. While many of these restrictions have been lifted or reduced after vaccines became widely available, potential surges by emerging variant strains, such as omicron, could cause surges that trigger new protection measures.

Even with the federal rules in limbo, hospice providers are learning to carefully navigate the vaccine issue. A number of states have imposed vaccine mandates, as have a number of providers themselves. Further complicating compliance, vaccine rules may apply differently in facility-based care settings in which hospices visit patients.

“Many folks were having to deal with the practical challenges of nursing home [or assisted living] partners requiring my staff to all be vaccinated,” said Meg Pekarske, hospice attorney and partner for Husch Blackwell, in a podcast by her law firm. “The wrinkle of assisted living facilities, which are increasingly a larger partner of hospices, [is that] they oftentimes do not get Medicare and Medicaid funding, and so the rules that may apply to them could be the OSHA or other rules. There is no federal regulation of [a vaccine mandate] on assisted living facilities.”

The U.S. Centers for Medicare & Medicaid Services (CMS) late last month issued an emergency regulation requiring COVID-19 vaccination for eligible staff at health care organizations that participate in Medicare or Medicaid. A federal court recently ordered a preliminary injunction that put a pause on implementation of that requirement for the time being, though the ultimate outcome remains uncertain.

The U.S. Occupational Safety & Health Administration (OSHA) also issued an emergency rule applicable to all employers with 100 or more employees. This regulation has also been held up by the courts.

As the federal mandate saga plays out in courtrooms, hospices are still working to balance staff and patient safety against the risk of losing workers who do not wish to be vaccinated. Providers in some markets are also navigating state and local requirements.

In addition to the rules that apply directly to hospices, providers would benefit from understanding those that pertain to their referral partners or locations they need to enter to access staff.

“Assisted living providers are for the most part not covered by the CMS rule and may not be covered by the OSHA rule, either,” said Tom O’Day, labor and employment attorney at Husch Blackwell. “That is a kind of doughnut hole that the federal government has recognized and acknowledged. The federal government was going to address that assisted living would somehow have a vaccine mandate. Whether it comes from OSHA or comes from CMS is to be determined, but that hole and that gap of coverage may close.”

Patient access was a top concern of hospice organizations who participated in a Hospice News and Homecare Homebase 2021 Outlook Survey. Nearly 45% of a little more than 160 hospice leaders indicated that the issue of patient-access was a leading COVID-related concern that kept them awake during 2020 and into this year.

Those concerns continue to mount amid uncertain vaccination rules. Patient access issues have impacted hospice referral streams and finances. Many hospices have taken financial hits during the pandemic due to drops in census from facility-based settings. Reduced facility access has led to fewer patients and shorter lengths of stay.

Roughly 30% of the nation’s health care personnel were unvaccinated for COVID-19 as of Sep. 15, according to a report from the American Journal of Infection Control, which analyzed data from the U.S. Department of Health and Human Services.

A mandate would be an impetus to leaving a job for roughly 5% of unvaccinated adults who responded to a nationwide survey from the Kaiser Family Foundation. More than a third of unvaccinated workers told Kaiser that they would rather quit than comply.

The deadly virus has claimed upwards of 780,100 lives nationwide since the pandemic’s onset, the U.S. Centers for Disease Control & Prevention (CDC) recently reported.