Biden Administration’s COVID-19 Action Plan Impact on Senior Living

This information is provided by national senior living association partner, Argentum.

In an address from the White House, President Biden announced a six-pronged COVID-19 action plan, the “Path out of the Pandemic,” and issued an Executive Order requiring federal employees to be vaccinated without a testing alternative. The action plan includes vaccination requirements for workers in most health care settings that receive Medicare or Medicaid reimbursement, in addition to all workers at companies with 100 or more employees. The requirements will become effective upon publication in the federal register, expected in October. Argentum staff and outside counsel are actively reviewing the proposal and its impact on the senior living industry, including the relation to previously issued federal guidance.

Argentum is supportive of efforts to increase vaccination rates as the most effective means of protecting against COVID-19, but we have several concerns regarding the practicalities of the administration’s sweeping federal mandates. As an industry, senior living has led vaccination efforts with overall rates higher than 99% of all U.S. counties with 90% of residents and 80% of staff vaccinated, and last month the Argentum Board of Directors issued a statement in support of employer-based vaccine mandates in the industry.

However, we have repeatedly called on the administration to provide reasonable support to operators, including with the ongoing efforts to administer booster doses, and targeted and equitable relief to offset the financial burdens incurred by providers. We have stressed that adding new financial and administrative burdens to providers only exacerbates the existing challenges facing the industry. We will continue to push the administration to recognize the critical needs of senior living providers and to adopt reasonable policies that reflect good faith efforts to meet the overall objectives of increased vaccination.

The Biden administration’s action plan includes six primary components:

• Vaccinating the Unvaccinated
• Further Protecting the Vaccinated
• Keeping Schools Safely Open
• Increasing Testing & Requiring Masking
• Protecting Our Economic Recovery
• Improving Care for those with COVID-19

Requirements for Health Care Settings

The Centers for Medicare & Medicaid Services (CMS) is expected to release an Interim Final Rule with Comment Period in October that will apply to all Medicare and Medicaid certified facilities. The rule would expand on a rule announced on August 18 that would have more narrowly applied to nursing homes (that rule has not yet been promulgated and some senior living facilities that participate in Medicaid may be subject). The new rule is expected to apply to significantly more health care workers in all facilities that participate in Medicare or Medicaid.

Argentum is seeking clarification on the scope of this rule’s impact on senior living facilities. As an IFR with Comment Period, the rule would take effect upon publication, but may be modified depending on feedback received through public comments.

Requirements for Large Businesses

The Department of Labor, through the Occupational Safety and Health Administration (OSHA), is expected to release an Emergency Temporary Standard (ETS) in October that would mandate all companies with more than 100 employers to mandate workers be vaccinated or take a weekly test. This ETS is expected to broadly apply to senior living operators that have more than 100 employees. As with the ETS issued in June, the ETS would require employers to provide paid time off for vaccination and any side effects from the vaccine. Employers not in compliance with the ETS could be subject to a $14,000 per violation penalty. This would become effective upon publication but may be modified based on public comments.

Relation to other Federal Regulations

It is possible that the rules that will be promulgated may supersede previously issued guidance, to include the Emergency Temporary Standard (ETS) issued in June by OSHA relating to COVID-19 workplace safety requirements for certain health care settings, and the Interim Final Rule (IFR) issued by CMS relating to vaccine education, administration, and reporting.

The ETS took effect upon publication, although Argentum submitted comments asking that it not be finalized, or if it is finalized, to specifically exclude assisted living from the requirements. Similarly, the IFR was effective upon publication, and we also submitted comments asking that the requirements not extend to cover assisted living facilities that participate in Medicaid and to make these programs for assisted living providers voluntary. While both of these have taken effect, they may be revised based on the comments submitted and may ultimately be substituted for rules issued as a result of the action plan.

The executive order mandating vaccines for executive branch employees and contractors who do business with the federal government does not include an alternative for weekly testing, and a similar standard may extend for health care settings; however, there are religious and medical exemptions available to workers, which may also apply to both the health care setting rule and the forthcoming OSHA ETS.

Argentum is closely monitoring developments relating to implementation of the action plan and will be working with administration officials to urge reasonable flexibility for operators and request necessary support and relief to meeting the administration’s objectives. Please continue to stay engaged and don’t hesitate to reach out if there’s any way that we can be helpful as details with complying with these requirements are determined.