A new Basic Caregiver Training Emergency Rule (WSR 22-15-020) has been refiled in Washington state, effective July 12, 2022. The Department of Social and Health Services (DSHS) filed rules effective July 1, 2022 as WSR 22-12-081 to outline dates by which HCAs must complete basic caregiver training based on hire and rehire dates. These dates may extend through September 30, 2023, or within 120 days after the end of the COVID-19 training waivers established by the governor, whichever is later.

​A new report released last week by PHI found that while 24 states and the District of Columbia supported direct care workers with hazard pay and/or paid sick leave policies during the first 18 months of COVID-19, 26 states did not.

​This report details findings from a recent study by PHI on hazard pay and paid sick leave policies enacted across all 50 states and DC from March 2020 to August 2021 (the first 18 months of the COVID-19 pandemic). The purpose of the study was to document how states responded to the challenges faced by direct care workers and other essential workers during one of the most devastating health crises in recent history—and to generate lessons for the future.

On July 12, the U.S. Equal Employment Opportunity Commission updated its COVID-19 FAQs, with specific emphasis on viral testing, antibody tests, and other issues relating to workplace safety. The agency’s update arrives as the nation continues to wrestle with substantial community spread of COVID-19, and new and more contagious variants of the virus are emerging here and around the globe.

​On June 8, 2022, the California Department of Public Health (CDPH) issued an order defining “Close Contact” and “Infectious Period” for purposes of the CDPH’s Isolation and Quarantine Guidance issued on April 6, 2022. Because the definitions in the new Order directly affect requirements under the currently effective Third Revised COVID Emergency Temporary Standard, California employers should be aware of this development.

​Households can order an additional eight tests at www.covidtests.gov if they have already received tests from the first two rounds of distribution. Agencies should let their clients and families know about the additional tests as a safeguard against the spread of the disease.

The Washington State Department of Social and Health Services has filed new rules to respond to the backlog of long-term care workers needing training and/or testing for certification caused by the COVID-19 pandemic.
 
These new rules will allow additional time for long-term care workers to be trained and certified. Workers are also credited with continuing education hours for on-the-job training during the COVID-19 emergency, and deadlines for completing continuing education are also extended. The Permanent Rule Making adds two new sections in Chapters 388-71 WAC and 388-112A WAC. To access the rule language, please click here.

The Department of Health and Human Services (HHS) and CMS announced that the deadline for states to use funding from the American Rescue Plan (ARP) has been extended to March 31, 2025. The ARP provided states with a temporary 10 percentage point increase in federal Medicaid funding for HCBS if they meet certain requirements. The original deadline was March 22, 2022.

The additional federal funding made available under the ARP allows those enrolled in Medicaid who need long-term services and supports to receive assistance required to reside in the setting of their choice.
 
States are using the funds in a variety of ways to enhance, expand, and strengthen home and community-based services. Some are using the additional funds to increase HCBS to help people with Medicaid coverage receive care outside a skilled nursing facility after a hospitalization. Others are providing recruitment and retention bonuses and increasing pay for direct support professionals and implementing new training programs and other strategies to strengthen the direct support workforce. Click here for details about how states are using the funds. 

Littler Law Firm created a list of emerging issues U.S. businesses should consider as their employees return to the office after the pandemic. Public health experts, economists and policymakers increasingly speak of “endemicity,” a phase in which COVID-19 transmission rates fall to a constant but manageable baseline level, perhaps confined to certain regions, rather than actively accelerating, and spreading throughout the population in epidemic fashion. Some refer to this next phase as “living with COVID” or even consider it a “return to normal.”
 
In the employment law context, however, “living with COVID” does not represent a return to normal. Rather, developments since 2020 make clear that human resources professionals can expect—and are already encountering—numerous COVID-19 related challenges to their disability accommodation practices.
 
This insight reviews a top ten list of emerging issues in this area, broadly relating to increased claims for accommodation, administering the interactive process, and assessing the reasonableness of proposed accommodations. 
 
Read the list. 

On April 25, Gov. McMaster signed H.3126 into law, restricting a private employer from instituting a COVID-19 vaccine mandate for its employees. However, H.3126 includes an exception for employers who (1) have certain qualifying federal conflicts and (2) submit an affidavit attesting to those federal conflicts to the Department of Employment and Workforce (DEW). DEW has posted more information about the process here.
 
Who should submit an affidavit:
You should file an affidavit with DEW if you are subject to an executive order or federal rule that requires your employees to be vaccinated. Certain providers who accept payments from CMS fall under this category.
 
What is an affidavit?
At this time, DEW has not provided a standard affidavit form that must be completed. DEW has advised us that it is leaving the form of the affidavit up to individual employers. The only requirement is that it be in PDF format. It appears that they are seeking a simple attestation that a federal conflict (such as your CMS related work) prohibits you from complying with H.3126. HCAOA has developed a sample affidavit for members. Click here to download. 
 
How to submit your affidavit to DEW:
An employer should submit a PDF of their completed affidavit to VaxAffidavits@dew.sc.gov. Employers will receive a reply email confirming receipt. Affidavits are being handled by DEW’s Office of Governmental Affairs. For questions, contact E. Andrews Morgan at EAMorgan@dew.sc.gov or (839) 810-7679. Duncan Crotwell, Deputy Director of Governmental Affairs, can also be reached for questions at (803) 737-0398.
 
Nothing in this informational post constitutes legal advice nor should this post serve as a substitute for legal advice. If you are unsure about the consequences of H.3126 on your business, you should seek the counsel of an attorney licensed in South Carolina.

A recent update from the CDC recommends that certain immunocompromised individuals and people over 50 years who received an initial booster dose at least four months ago are eligible for another booster to increase their protection against COVID-19. People with Medicare can get a second Pfizer-BioNTech or Moderna COVID-19 vaccine at no cost with no applicable copayment, coinsurance or deductible. CMS is covering the cost for qualified individuals in an effort to ensure maximum access to COVID-19 vaccinations. Medicaid beneficiaries can also get COVID-19 vaccines, including first boosters, at no cost.
 
​The CDC also recommends that adults who received a primary vaccine and booster dose of Johnson & Johnson’s Janssen COVID-19 vaccine at least four months ago can receive a second booster dose of a Pfizer-BioNTech or Moderna COVID-19 vaccine.
 
More information regarding the CDC COVID-19 Vaccination Program Provider Requirements and how the COVID-19 vaccine is provided through that program at no cost to recipients is available at https://www.cdc.gov/vaccines/covid-19/vaccination-provider-support.html and through the CMS COVID-19 Provider Toolkit.
 
Visit vaccines.gov (English) or vacunas.gov (Spanish) to search for vaccines nearby.

The Biden-Harris Administration announced that Americans with Medicare Part B, including Medicare Advantage, can access up to eight free over the counter COVID-19 tests each month.
 
Members: this is an opportunity to assist your clients who are on Medicare to access at-home kits to reduce the spread of COVID-19.

Medicare is not requiring participating eligible pharmacies and health care providers go through any new Medicare enrollment processes.
 
National pharmacy chains participating in this initiative include Albertsons Companies, Inc., Costco Pharmacy, CVS, Food Lion, Giant Food, The Giant Company, Hannaford Pharmacies, H-E-B Pharmacy, Hy-Vee Pharmacy, Kroger Family of Pharmacies, Rite Aid Corp., Shop & Stop, Walgreens, and Walmart.
 
Additional eligible pharmacies and health care providers may also participate, so people with Medicare should check with their pharmacy or health care provider to find out whether they are participating.
 
This initiative adds to existing options for people with Medicare to access COVID-19 testing, including:
 

• Requesting free over-the-counter tests for home delivery at gov. Every home in the U.S. is eligible to order two sets of four at-home COVID-19 tests.
• Access to no-cost COVID-19 tests through health care providers at over 20,000 testing sites nationwide. A list of community-based testing sites can be found here.
• Access to lab-based PCR tests and antigen tests performed by a laboratory when the test is ordered by a physician, non-physician practitioner, pharmacist, or other authorized health care professional at no cost through Medicare.
• In addition to accessing a COVID-19 laboratory test ordered by a health care professional, people with Medicare can also access one lab-performed test without an order and cost-sharing during the public health emergency.

 
More information can be found on this fact sheet.
 
People with Medicare can get additional information by contacting 1-800-MEDICARE or visiting https://www.medicare.gov/medicare-coronavirus.
 
Medicare also maintains several resources to help ensure beneficiaries receive the correct benefits while also avoiding the potential for fraud or scams here.

 The current rule, known as an emergency temporary standard (ETS), applies to most settings where an employee provides healthcare services or support services and requires things like a COVID-19 plan for the workplace, patient screening and management, physical distancing, and the availability of personal protective equipment.
 
A summary of this ETS can be found here.
 
OSHA is seeking new data and feedback from employers to update the ETS on:

• How to introduce more flexibility into COVID-19 rules for employers,
• How to better align the rule with the CDC’s recommendations,
• How employers can support employees who wish to be vaccinated, and
• The necessity and types of COVID-19 recordkeeping and reporting provisions.
  ​

OSHA is currently seeking input from the public regarding rules designed to protect those healthcare workers that are most likely to have contact with people infected with the COVID-19 virus. The current rule, known as an emergency temporary standard (ETS), applies to most settings where an employee provides healthcare services or support services and requires things like a COVID-19 plan for the workplace, patient screening and management, physical distancing, and the availability of personal protective equipment.

​The Hospital Inpatient Modernization Act (S3792/HR7053) was introduced earlier this month to extend the CMS waiver that was initiated during the pandemic to provide acute care to patients in their homes.