AHA Shares New Concerns with Vaccine Mandate for Healthcare Workers

January 07, 2022 - A comment letter from the American Hospital Association (AHA) to CMS requested changes and increased clarity concerning the agency’s COVID-19 vaccine mandate for healthcare workers. 

The newest guidance reinstated the COVID-19 vaccine mandate for states not affected by the preliminary injunction. In addition, the rule requires all eligible staff at healthcare facilities participating in Medicare and Medicaid programs to be vaccinated with the first dose of the COVID-19 vaccine by Jan. 27, 2022. 

In the comment letter, AHA urged CMS to provide sufficient time for hospitals and health systems to become compliant with the vaccine mandate without penalizing them as they respond to the pandemic. 

“This is especially important given that the maximum penalty for non-compliance with a condition of participation is a hospital or health system’s termination from the Medicare and Medicaid programs. This is severe enough to endanger most hospitals’ financial viability, and therefore threatens their ability to care for their communities,” Stacey Hughes, AHA’s executive vice president, stated in the letter.

The AHA said pressing health systems to let go of unvaccinated staff during a nationwide workforce shortage will exacerbate hospital challenges.  

In addition, quickly resolving staffing issues is considered unlikely by the AHA as adequate time is needed to convince existing healthcare staff to get vaccinated or hire properly trained replacements. 

“An enforcement approach that presses forward too aggressively has the potential to create disruptions in patient care. CMS should continue to employ significant enforcement discretion in an effort to mitigate any potential disruptions in care while our members work to come into compliance,” Hughes said.

In the event that the Supreme Court lifts the injunction for the 25 states, AHA recommends that CMS provide facilities in those states ample time after the decision to come into compliance. 

Grandfathering existing hospital and health system processes that align with the government’s vaccination objection was another suggestion shared by the provider industry group. 

The provider group proposed that CMS allow medical and religious exemptions established by hospitals before the Interim Final Rule (IFR) or provide them with a phase-out period for exemptions that do not align with CMS guidance.

“While the goal of these efforts are in lockstep with CMS’ stated intentions, the lack of detailed information from the agency prior to the interpretive guidance’s Dec. 28 release forced our members to make their own determinations as to what is appropriate and acceptable,” Hughes said.

The letter acknowledged government efforts to increase clarity by releasing a Frequently Asked Questions (FAQs) document along with the interpretive guidance for the IFR. However, the AHA, on behalf of their 5,000 hospital members, states the guidance remains unclear and leaves members with additional questions. 

AHA proposed that CMS offer hospitals and health systems an opportunity to submit questions and receive prompt feedback. This platform would assist in preventing non-compliance from hospitals.

The hospital group also pushed for the guidance to address the possibility of an unexpected vaccine supply shortage, so supply shortages do not impact the compliance status of hospitals.

“To be clear, we anticipate that the supply of vaccine will remain adequate to vaccinate all who need it. However, we urge CMS to include contingencies in its policy (e.g., temporary suspension of requirements, grace periods, etc.) to ensure that, in the event that vaccine supplies are inadequate, hospitals are not considered out of compliance,” Hughes states. 

Lastly, AHA is concerned that CMS implemented the mandate through a condition of participation (CoP). This action deprives CMS of receiving feedback prior to implementation from Congress and those most affected by the rule, such as rural providers.

The group suggested that CMS consider the rule’s impact on rural providers as they might struggle to comply with the rule. 

“Assuring the integrity of CoPs is particularly important to the hospital field as they set the standard for essential elements of operating a hospital safely and carry the potential penalty of exclusion from in the Medicare and Medicaid programs for lack of compliance.

AHA stated that CMS should only establish CoPs through an IFR under extraordinary circumstances. Furthermore, they proposed that CMS should pursue input from congressional leaders under those extraordinary circumstances.