Biden Plans to Tie Vaccines for Nursing Home Staff to Federal Funding

Kerry Dooley Young

August 19, 2021

President Joe Biden intends to use the financial clout of Medicare and Medicaid to require that the staff of US nursing homes get COVID-19 vaccines, with plans to release a formal plan for this mandate next month.

A press release issued Wednesday by the Centers for Medicare & Medicaid Services (CMS) didn't offer specific details on how such a mandate would work, such as intended fines or penalties or potential thresholds for withholding federal payment.

But groups that represent long-term care organizations, the American Health Care Association and National Center for Assisted Living and LeadingAge, quickly protested the narrow range of this plan and called for a broader mandate that would apply generally to people working in medicine.

Katie Smith Sloan, LeadingAge's chief executive officer, said her organization has encouraged its members to make COVID-19 vaccination a condition of employment for their staff.

"We believe this should be the case for not only nursing home staff, but also all healthcare workers in all settings. The entire healthcare community has been risking their lives every day for over a year to protect older Americans from COVID," Sloan said in a statement. "The vaccine is the best proven protection. We all need everyone to be vaccinated, while honoring exemptions for medical and religious reasons."

It remains to be seen whether CMS will be able to get its planned new vaccine mandate into effect quickly, or if the future CMS vaccine mandate may be different from what was proposed by the White House Wednesday.

The CMS release outlined some of the regulatory work ahead for agency staff in trying to put forward this mandate. CMS is working with the Centers for Disease Control and Prevention (CDC) on an emergency regulation requiring staff vaccinations for the more than 15,000 nursing homes that accept Medicare and Medicaid payments.

CMS said it expects to take "the necessary steps in the rule-making process over the course of the next several weeks."

Power of the Purse

CMS has for decades been able to use its position as the biggest purchaser of US healthcare to set what amount to national policies. Medicare ($799.4 billion) and Medicaid ($613.5 billion) accounted for more than a third of total US health spending ($3.8 trillion) in 2019, according to an estimate from CMS staff.

CMS thus has tremendous influence on health policy as it sets standards that hospitals, nursing homes, and other medical organizations must meet to qualify to receive payments from Medicaid and Medicare.

In the 1960s, for example, federal officials used Medicare pay as a tool to help desegregate hospitals, noted researchers from the liberal Center for American Progress (CAP) in an August 6 report.

This report, titled Mandatory COVID-19 Vaccination for Health Care Workers as a Condition for Medicare and Medicaid Participation, urged the Biden administration to use an expedited process to use the Conditions of Participation and Conditions for Coverage in federal health programs for a wide vaccine mandate.

"It is in the public interest to increase vaccination rates without delay, and mandatory vaccinations for health care workers are of critical importance in protecting patients' health and safety. Providers would have eight weeks from the effective date of the rule to ensure compliance, allowing the time needed for full vaccination," wrote Jill Rosenthal, CAP's director of public health policy and her co-authors in the report. "CMS should also evaluate whether it can impose civil monetary penalties, set to increase over time, for noncompliant organizations."

Rosenthal told Medscape Medical News that there have been bipartisan efforts toward mask mandates in healthcare. On Wednesday, Maryland Gov. Larry Hogan, a Republican, announced plans for a mandate that would apply more broadly than the one the White House announced.

Hogan said that, effective immediately, all employees of the state's 227 nursing homes and all employees of Maryland hospitals will be required to show proof of vaccination, or adhere to ongoing COVID-19 screening and testing.

Rosenthal called for moving toward a broader federal mandate rather than one narrowly focused on nursing homes. She called the Biden administration's plan announced Wednesday a "good first step."

"Then the next step would be to build on it" by making a vaccine mandate a condition of participation for hospitals as well, Rosenthal said.

The White House on Wednesday sought to build its case for the nursing-home mandate on the emergence of the Delta variant of SARS-Cov-2 and the gaps in vaccination already known to exist in the staff of nursing homes.

About 62% of the staff of US nursing homes were vaccinated as of August 8, with state level ranges from a high of 88% to a low of 44%, CMS said. COVID cases among nursing home residents went from a low of 319 cases on June 27, to 2696 cases on August 8, with many of the recent outbreaks occurring in facilities located in areas of the United States with the lowest staff vaccination rates.

"We will continue to work closely with our partners at the CDC, long-term care associations, unions, and other stakeholders to advance policies that keep residents and staff safe," CMS Administrator Chiquita Brooks-LaSure said in a statement. "As we advance these new requirements, we'll work with nursing homes to address staff and resident concerns with compassion and by following the science."

Potential Loss of Critical Workers

Mark Parkinson, president and CEO of the American Health Care Association and National Center for Assisted Living (AHCA/NCAL), urged the White House to apply its planned new regulation broadly to all healthcare settings. Otherwise, nursing homes face a "disastrous workforce challenge," he said in a statement.

"Focusing only on nursing homes will cause vaccine-hesitant workers to flee to other healthcare providers and leave many centers without adequate staff to care for residents," Parkinson said. "It will make an already difficult workforce shortage even worse. The net effect of this action will be the opposite of its intent and will affect the ability to provide quality care to our residents."

Parkinson's AHCA describes itself as the largest US association representing long term and post-acute care providers, with more than 14,000 member facilities. LeadingAge, which represents about 5000 nonprofit aging-services organizations, also warned of unintentional serious consequences from a mandate focused on nursing homes.

"Our mission-driven nursing home members, who operate on narrow margins in the best of times, depend on those funds alone to care for their residents," LeadingAge's Sloan said. "They cannot bear additional financial losses after more than a year of shouldering historic COVID-related costs."

David Grabowski, PhD, a professor of health care policy at Harvard Medical School in Boston, Massachusetts, also called it a mistake for the Biden administration to seek to focus the vaccine mandate only on the staff of nursing homes. Grabowski studies the economics of aging with a particular interest in long-term care. He serves on the Medicare Payment Advisory Commission (MedPAC).

A narrow vaccine mandate could lead to nurses who didn't want to be vaccinated to shift to work in hospitals and other medical settings. But many hospital systems have already instituted their own vaccine mandates.

For a key part of the staff of nursing homes, retail businesses are a source of competition for their services. Nursing homes already see high turnover with competition for certified nursing assistants (CNAs) from other businesses, including retail, Grabowski said.

"If a CNA doesn't want to work in a nursing home due to the new mandate, she can go down the street to Target and work there," Grabowski said. "She's going to make a very similar wage" and may have a similar set of benefits.

The median hourly pay was $14.82 an hour for nursing assistants and orderlies, with assistants having median annual pay of $30,850, according to 2020 figures from the Bureau of Labor Statistics (BLS). Nursing assistants often need to complete a state-approved education program and pass their state's competency exam to become licensed or certified, BLS said.

In contrast, there's no formal education requirements for retail clerks, a field with median pay of about $13.13 an hour in 2020, according to BLS. And Target in June 2020 said it would permanently raise its starting wage for US workers to $15 per hour. The company "encourages" its workers to get vaccinated, according to its website, but does not mandate it.

In contrast, poor working conditions for nursing home staff already had helped make vaccines a tough sell in that field, according to the National Association of Health Care Assistants (NAHCA).

In a Wednesday statement about the Biden plan for a vaccine mandate for nursing home staff, the NAHCA said there had been widespread lack of support throughout the pandemic for CNAs, including shortage of personal protective equipment. The association said it recognized employers' rights to require COVID-19 vaccines for their employees, as long as these rules are in keeping with federal and state laws and allow appropriate exemptions for those with medical conditions or religious objections.

But more attention is needed to the chronic "underfunding and understaffing in nursing homes that sometimes leads to substandard care and difficult and dangerous working conditions," including a "long history of poor benefits and pay that in many cases do not amount to a living wage," NAHCA said.

It "is our position that more must be done not only to address CNAs' concerns about the vaccine, but also to improve the underlying issues that these dedicated frontline care staff have faced for the entirety of their careers," said Sherry Perry, chair of NAHCA's board of directors, in a statement.

Grabowski concurred on the need for more attention to the working conditions that have played a role in vaccine hesitancy. He also warned it would be wrong to assume that nursing homes would be able to overcome any staffing losses they faced due to imposing a vaccine mandate.

He said there are serious risks to the residents of nursing homes if staffing levels drop. There would be immediate consequences such as increases in falls and then longer-term issues such as more infections among patients.

"Nothing good can come of having short-staffed nursing homes. We know that," Grabowski said.

Kerry Dooley Young is a freelance journalist based in Washington, D.C. She is the core topic leader on patient safety issues for the Association of Health Care Journalists. Young earlier covered health policy and the federal budget for Congressional Quarterly/CQ Roll Call and the pharmaceutical industry and the Food and Drug Administration for Bloomberg.  Follow her on Twitter at @kdooleyyoung.

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