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February 9, 2022

Board Members Included in COVID-19 Vaccination Mandate

On January 21, 2022, the New York State Department of Health (DOH) notified covered entities (defined as hospitals, nursing homes, diagnostic and treatment centers, adult day health care programs, home care agencies, hospice programs and adult care facilities) that new requirements regarding COVID-19 vaccinations for health care personnel became effective. The amendments to the NYS health code now require that facility personnel receive a primary vaccine series as well as booster vaccines in order to be considered “fully vaccinated”: 

Covered entities shall continuously require personnel to be fully vaccinated against COVID-19, and to have received any booster or supplemental dose as recommended by the CDC, absent receipt of a medical exemption. 

As a result of the amendment, covered entities must ensure personnel who are currently eligible for a COVID-19 booster dose have documentation of compliance by February 21, 2022, and that personnel not currently eligible for boosters receive their boosters within 30 days of becoming eligible, unless they have documentation of a medical exemption.

Section 2.61(a)(2) of the New York Codes, Rules, and Regulations defines “personnel” subject to the vaccine mandate as “all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.” Any volunteer who has the potential to expose or infect facility personnel, including administrative staff, must comply with the COVID-19 vaccine and booster requirement. Volunteers who have a formal relationship with the covered entity and who provide regularly scheduled volunteer services must comply. Individuals who serve on a facility’s board and attend in-person meetings on-site with facility personnel (such as the administrator, CEO, or CFO) would appear to be included in this risk category. However the DOH’s FAQs do include one important exception: “one-time or sporadically visiting volunteers” are exempt from the vaccine mandate.

There is a federal mandate imposed by the Centers for Medicare & Medicaid Services upon long-term care facilities that also views board members as volunteers. The preamble to the federal regulation applicable to nursing homes (42 CFR § 483.80) includes board members, regardless of whether they have clinical responsibility or resident contact:

Regardless of frequency of patient contact, the policies and procedures must apply to all staff, including those providing services in home or community settings, who directly provide any care, treatment, or other services for the facility and/or its patients, including employees; licensed practitioners; students, trainees, and volunteers; and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement. This includes administrative staff, facility leadership, volunteer or other fiduciary board members, housekeeping and food services, and others. . . . Therefore, any individual that performs their duties at any site of care, or has the potential to have contact with anyone at the site of care, including staff or patients, must be fully vaccinated to reduce the risks of transmission of SARS–CoV–2 and spread of COVID-19. 

Unlike New York State, there is no exemption in the federal mandate for “one-time or sporadically visiting” volunteers. The only exemption is for individuals who work exclusively remotely and do not have any direct contact with patients or staff.

Because both federal and state regulations regard board members as volunteers having the potential to pass infection on to facility personnel, these individuals must be considered in the facility’s policies and procedures for vaccination if they have in-person meetings with facility personnel, whether that meeting is on-site or off-site. However, there is an important distinction between facilities subject only to NYS requirements, such as adult care facilities or home care agencies, and nursing homes, which are subject to CMS requirements. For facilities subject only to NYS requirements, board members who attend meetings on-site sporadically are not required to be fully vaccinated. These providers should avoid scheduling frequent in-person meetings with board members to avoid running afoul of NYS requirements.

For long-term care facilities governed by the CMS rule, there is no similar exemption. Board members who have in-person contact with facility personnel must be vaccinated and boosted if they are eligible. The only exception is if they only attend remote meetings and never enter the organization’s premises or attend off-site events with provider staff. The inclusion of board members in the vaccine mandate could create a headache for long-term care facilities, which now must not only press their most dedicated and supportive volunteers to supply proof of vaccination or exemption but must also monitor compliance when and if those individuals become “eligible” to receive booster shots. As a result, those facilities should conduct board meetings remotely unless they are prepared to ensure vaccination.

If you have any questions regarding the content of this article, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com, or another member of Barclay Damon’s Health & Human Services Providers Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com
 

                                                         

iSee New York Codes, Rules, and Regulations Section 2.61(c).
iiSee Federal Register, Volume 86, No. 212, Friday, November 5, 2021, Rules and Regulations, pp. 61570–61571.

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