Member Town Hall on Vaccine Mandates - A Summary

Regulation | August 26, 2021 | by Dee Pekruhn

On Thursday, August 26, 2021, LeadingAge held a Town Hall meeting for members to discuss vaccine mandates and the recent news from CMS. Below, we summarize what information was covered and responses from the audience.

To begin the Town Hall meeting, Ruth Katz, SVP of Policy, offered affirmative comments to all members about how important it is for LeadingAge to hear from you, so that we can raise our collective voices in advocacy to Capitol Hill and regulatory agencies such as CMS. She emphasized that while we do not have all the answers today, our aim is to provide a ‘road map’ to where we believe we are headed. LeadingAge continues to support testing, masking, quarantining and social distancing, and our position is that vaccines are the way out of the pandemic. We support vaccine mandates for ALL healthcare provider settings that are under CMS, if CMS is going to mandate that nursing home employees be vaccinated. Ruth said, “focusing on just one type of provider is untenable and won’t protect the people [the vaccine] is intended to protect.” She closed with the solicitation that members tell us what you need from LeadingAge.

Jodi Eyigor spoke next about what was learned at the National Nursing Home Stakeholder call on Wednesday, August 25 2021. It now appears that the rule may come out in late September or early October. We don’t know when it will then take effect and what the dates of compliance will be, nor do we know how penalties will be assessed. However, it was reassuring to hear that CMS said this rule will go the way of other regulations, with citations, notifications and penalties being the first steps, and an immediate termination of provider agreement not appearing to be on that list. They also clarified that this rule will apply to all nursing home staff, volunteers, contractors, student nurses, and any who are contracted or in agreement to provide care and services to residents. We are still waiting to hear how CMS will handle employee exemptions and accommodations.

A roundtable discussion held together with Ruth, Cory Kallheim, Juliana Bilowich and Dee Pekruhn explored how a CMS mandate for nursing homes might affect Assisted Living, Housing and Life Plan Community members, respectively. Dee mentioned that LPCs must consider whether to extend the vaccine mandate to all staff on the campus, and wondered if residents may welcome a mandate as many residents in member organizations were anxious to know that staff had been vaccinated. Cory emphasized that AL members had to review what their state agencies were requiring in terms of staff vaccinations, as CMS does not have jurisdiction in that area. Juliana closed the panel discussion by sharing that HUD hasn’t issued a mandate, nor is one expected, and it’s a tricky issue for housing providers generally; some may welcome a mandate, and others not so much.

Cory then gave a quick overview of medical and religious exemptions, as well as addressed a question by a member regarding liability for mandated vaccines. He clarified that it is legal for private employers and states to require vaccinations and immunizations, and he gave recent examples that have been upheld in court, such as Indiana University. The Federal government cannot mandate vaccines for all citizens, but they can do so for Federal employees and agencies, which they have done. He encouraged interested members to review the linked information from EEOC on medical and religious exemptions, and explained that medical exemptions are covered by the Americans with Disabilities Act, which religious exemptions are covered under Title 7 of the Civil Liberties Act. He addressed the question of whether an employer is liable if an employee gets sick following a mandated vaccine; the short answer is, while the employer may have to cover missed time and wages through worker’s compensation, liability for the vaccine itself is not held by the employer. There is a separate federal agency that tracks adverse reactions to the COVID vaccine, and anyone who experiences symptoms should be reported there.

A call to action was given by Marsha Greenfield, who explained that if CMS is going to mandate vaccines for nursing home employees, then our position is that all healthcare employees should be mandated to take the vaccine. This helps address two issues: quality of care for residents, and workforce migration. Nursing home residents do not live in isolation, but participate in healthcare across a continuum that includes hospitals, doctor’s offices, and similar; any of those who receive Medicare or Medicaid funding should also be mandated for vaccination. And, if other healthcare settings are mandated as well, workers seeking to ‘escape’ the vaccine mandate by going to another healthcare setting will be unable to do so. An Action Alert will be forthcoming, and she called on all members to help lobby their elected officials for a joint letter from Congress to be sent to the Administration, supporting our position to mandate across all healthcare settings that receive CMS funding.

Throughout the program, Nicole Fallon reviewed and read out member comments and questions. Several members on the call expressed disappointment and anger that LeadingAge has taken this position on mandates, and/ or that CMS has decided to mandate vaccinations in nursing homes. Many members are very concerned about the impact on the workforce. Questions came in about the applicability of the mandate on other healthcare settings; there was discussion about how mandates on the state and federal level work together. The answer generally is that the more stringent requirement must be followed, and members are urged to carefully review their states’ mandates. A link to an article on states’ mandates was provided. Members also expressed that if CMS is mandating for staff, then visitors, surveyors, and others should also have to be vaccinated per a CMS requirement. Jodi answered a member question about testing as an ‘opt out’ for a vaccine requirement; she said that she doubted that CMS would provide that as an option, given that we have been testing all along, and it’s been the vaccine, not the testing, that has quelled the surge of the virus.

Ruth closed the Town Hall with a promise of soon-to-be available resourses, including a member panel on vaccine mandates after Labor Day, a virtual update on exemptions, and Quickcasts on relevant topics such as how to correct myths about the vaccine. She asked members to help LeadingAge know how best to support you, and left a very open door for more feedback, suggestions, concerns and comments.