Employers and professional organizations announcing mandates

On August 2, 2021, Genesis HealthCare mandated COVID-19 vaccinations for all staff.  Genesis reported 65% of their approximately 70,000 employees in 400 facilities nationwide are currently vaccinated.  Employees who fail to get vaccinated within three weeks are subject to termination unless granted a medical or religious exemption.  Many other large senior living providers have also issued mandates, including Brookdale Senior Living, Evangelical Lutheran Good Samaritan, Sanford Health, LCS, Episcopal Retirement Services, CareOne, and Ascension.

In July, the AHCA/NCAL, which represents 14,000 skilled and assisted living providers, strongly urged the vaccination of all health care workers and issued support of providers that adopt mandatory COVID-19 vaccination policies.  Also, LeadingAge, which represents 5,000 nonprofit aging services providers, encouraged its members to make COVID-19 vaccines a condition of employment for all healthcare workers.  This group also supported a statement in support of vaccine mandates for all workers in health and long-term care which was signed by 58 professional organizations including the American Medical Association and the American Nurses Association.  According to Centers for Medicare & Medicaid Services, nursing assistants and other aides have the lowest vaccination rate in LTC facilities at 45.6%.

Federal and state government initiatives

In May 2021, the US Equal Employment Opportunity Commission announced that federal EEO laws do not prevent an employer from requiring workers to be vaccinated against COVID-19 as long as they did not violate the Americans with Disabilities and the Civil Rights acts.  On July 27, the CDC issued a Health Advisory as a result of the Delta variant, which included recommendations to nursing homes to establish incentives to employees and to evaluate if the facility can implement vaccine requirements.

As of August 2021, California, Connecticut, Illinois, Maryland, Massachusetts, New Jersey, and the city of Denver are requiring nursing home staff to be fully vaccinated.  Yet seven states (Montana, North Dakota, Utah, Arizona, Arkansas, Tennessee, and New Hampshire) have enacted legislation to ban employer mandated vaccinations.  On the federal level, the Biden administration is considering withholding federal funds from long-term care facilities based on employee vaccination compliance.

Staffing issues in LTC settings

According to the CDC, “Maintaining appropriate staffing in healthcare facilities is essential to providing a safe work environment for healthcare personnel (HCP) and safe patient care.”  As such, they publish ongoing guidance specifically for healthcare facilities experiencing staffing shortages due to COVID-19.  This document includes Contingency and Crisis Capacity Strategies to mitigate staffing shortages.

The “COVID-19 Intensifies Nursing Home Workforce Challenges” study revealed the annual turnover rate for CNAs is 51.5%, LPNs 36.4% and RNs 50%.  It noted that conditions in nursing homes are exacerbated by the impact of COVID-19 on staff.  In another survey by AHCA/NCAL, 94% of nursing homes noted staffing shortages, with the situation being worse due to high turnover associated with COVID-19.

Many strategies are being used to retain and recruit staff.  For example, Minnesota is proposing $1,500 bonuses to the 79,000 long-term care workers in the state who have been working through the pandemic.  There are currently 10,000 open positions in the state as a result of LTC workers who have left the field.

Excelas’ role in addressing claims and litigation related to staffing issues

The impact of adequate staffing on quality of care is clear, but it is unclear what the effect of vaccine mandates on staffing levels will be in the long run.  Documentation best practices are key, with multiple source records becoming relevant when short staffing is at issue.  In addition to the resident’s medical records, these records include, but are not limited to:

• Staff training meeting minutes
• Staffing plans and incentives
• Federal, state, and corporate guidelines and mandates
• Policy and procedure changes in response to federal/state/corporate guidance
• Infection control policies, procedures, and updates
• Emergency response plans
• Supply chain information relative to PPE
• COVID-19 education, testing, and vaccination communications to staff

Excelas’ tools, including the Provider of Care Report, Care Calendar/Touch Chart, and Medical Chronology provide a means for early case assessment.  Our Staffing Scorecard allows you to use CMS data to identify fluctuations in staffing levels, compare your facility to others in your area, and anticipate the plaintiff’s narrative.  Our COVID-19 Comprehensive Database integrates all of the above documents in a concise timeline to illustrate your facilities response to the frequently changing guidelines in conjunction with the individual resident’s medical records.

Contact the experts at Excelas for a demonstration of these powerful tools.