(Credit: Guido Mieth / Getty Images)
While a pair of federal vaccination mandates are being held up in the courts, action — or inaction — on another federal standard could have a heavy impact on assisted living providers in the next two weeks.
The Occupational Safety and Health Administration healthcare emergency temporary standard is set to expire Dec. 21 unless the agency makes it permanent or adopts changes.
The standard went into effect June 21 and applies to healthcare settings where suspected or confirmed individuals with COVID-19 are treated, including assisted living communities, life plan / continuing care retirement communities, nursing homes, skilled nursing facilities, and settings where home healthcare or hospice care are provided.
Under the standard, operators are required to conduct hazard assessments and have written plans to mitigate the spread of the coronavirus. The standard also requires healthcare employers to provide some employees with N95 respirators and other personal protective equipment. Additionally, it includes protocols covering social distancing, employee screening, and cleaning and disinfection.
Settings subject to the OSHA healthcare standard are exempt from the OSHA vaccination-and-testing emergency temporary standard. The exemption, according to one expert, places assisted living communities in a doughnut hole, where neither the Centers for Medicare & Medicaid Services vaccine mandate nor the OSHA COVID-19 vaccination-and-testing standard applies — at least temporarily. Assisted living communities likely will become subject to the OSHA vaccination-and-testing standard if the healthcare standard expires in two weeks.
Stand-alone independent living communities that do not provide COVID-19-related healthcare to residents are not included in OSHA’s healthcare standard.
Although well-intentioned, the workplace safety rules are “burdensome” and “duplicative,” senior living association leaders said when they were announced. The leaders of the American Health Care Association / National Center for Assisted Living, Argentum, the American Seniors House Association and LeadingAge said the healthcare standard “adds a layer of confusion and interferes with the abilities of professionals to make good, clinical decisions.”
LeadingAge called the situation “dynamic.” AHCA / NCAL told McKnight’s Senior Living that healthcare standards already exist in the covered settings; the groups are recommending that the healthcare standard be allowed to expire.
“If OSHA intends to create a permanent airborne infectious disease rule, we request that they work with long-term care providers to develop standards that are feasible, protect employees and allow for providers to be fully prepared and supported in the face of any infectious disease outbreak,” an AHCA / NCAL spokeswoman said. “We have alerted our members that it is possible they may need to comply with the OSHA vaccine mandate should the original ETS expire.”
OSHA has indicated the healthcare standard will be replaced with a permanent rule, but Bloomberg Law reported last week that a Department of Labor spokesperson said that OSHA “does not have an update at this time.”
To date, there are no legal challenges to the OSHA healthcare standard, and it remains in effect, agency officials said.
OSHA’s COVID-19 ETS
The OSHA COVID-19 vaccination-and-testing standard, which went into effect Nov. 4, applies to private employers with 100 or more employees who aren’t covered under the OSHA healthcare standard.
OSHA announced Nov. 17 that it was suspending enforcement of the standard after legal challenges saw the consolidated caseload assigned to the Court of Appeals for the Sixth Circuit in Cincinnati.
The agency extended the comment period on the standard until Jan. 19 from its original Dec. 6 deadline.
CMS emergency regulation
CMS announced its emergency regulation at the same time as OSHA announced its COVID-19 vaccination-or-testing standard. The CMS rule requires providers and suppliers to improve a vaccination mandate on employees as a condition of participation in the Medicare or Medicaid programs. Unlike the OSHA vaccination rule, the CMS rule does not have a testing alternative.
CMS made clear the rule does not apply to assisted living providers, including those participating in Medicaid via the provision of home- and community-based services. The rule, however, could affect continuing care retirement communities that offer a variety of care settings on one campus and share staff members among service lines.
Two weeks after OSHA backed off of its original intent for the vaccination rule, CMS similarly said it would not enforce its rule while preliminary injunctions against the regulation are in place.
Regardless of the uncertainty and legal challenges ahead, senior living advocates continue to encourage providers to familiarize themselves with the rules and be prepared to act.
