Sixteen states are making another push to stop the federal COVID-19 vaccine mandate for healthcare workers nearly a month after the Supreme Court upheld the regulation.
The 16-state coalition, led by Louisiana Attorney General Jeff Landry, on Friday filed a complaint with the U.S. District Court of the Western District of Louisiana seeking to stop the rule’s enforcement in the state before the next compliance deadline goes into effect next week.
The filing doesn’t really raise or add new legal arguments to those already submitted in the prior litigation, which resulted in the U.S. Supreme Court’s decision to uphold the CMS healthcare worker mandate, according to Kristin Ahr, a partner in Nelson Mullins’ West Palm Beach, FL, office.
“In their newest filing, the plaintiff states rely heavily on the ‘factual’ claim that the delta variant – the spread of which factored largely into the basis for the agency’s rulemaking – is no longer a threat,” Ahr told McKnight’s Long-Term Care News Monday. “[The states] indicate that the omicron variant is much less severe, that vaccinations do not prevent omicron and that vaccinations have adverse side effects. The remainder of the pleading recycles many of the arguments already raised.”
She added the Supreme Court’s decision to uphold the mandate was fairly clear that CMS had the authority to issue the regulation.
“Unless the [states] can somehow persuade a District Court, a court of appeal, and ultimately the U.S. Supreme Court, that these new ‘facts’ are compelling enough to change the outcome, it is likely that the covered providers must comply with the CMS mandate within the time frames provided in the related guidance,” Ahr said.
“If I were a covered provider in one of [those states], I wouldn’t hold my breath that this latest pleading will somehow change the CMS deadlines or the ultimate enforceability of the healthcare worker mandate,” she added.
Louisiana’s first challenge of the rule led to a nationwide injunction against the federal regulation for workers at Medicare- and Medicaid-certified facilities.
Other states that joined the newest lawsuit are: Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia and West Virginia. All of the states, outside of Tennessee, were previously shielded by temporary injunctions against the regulations until the Supreme Court’s decision.
The first deadline for compliance, among half the states, was late January. That will be followed by a first-shot deadline of Feb. 13 for more states and Feb. 19 for Texas.
“The CMS vaccination rule remains a misguided, one-size-fits-all, job-killing directive that does not account for any change in circumstances — including how the vaccines do not stop the transmission of the omicron variant,” Landry said in a statement Friday.
“What’s more: the federal government has now made clear that it expects the states to implement this flawed policy with state employees. So I will continue fighting this ill-advised invasion of individual autonomy and my state’s rights,” he added.
CMS’ COVID-19 vaccine requirement applies to roughly 10.4 million healthcare workers at 76,000 medical facilities, according to the Biden administration. Long-term care providers have said mandates make it harder for them to find and keep workers but have steadily encouraged employees to get vaccinated.