Judge bangs his gavel
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This story has been updated to include additional details.

Two pending court challenges against the Biden administration’s COVID-19 vaccination mandate now take center stage after a federal judge on Monday temporarily halted the rule in 10 states.

The preliminary injunction was handed down by the U.S. District Court for the Eastern District of Missouri and is the first successful challenge of the regulation, which was issued by the Centers for Medicare & Medicaid Services earlier this month and requires eligible healthcare workers to be fully vaccinated by Jan. 4, 2022. The first deadline for the rule requires workers to have their first shot by Monday (Dec. 6).

The mandate is blocked, as of now, in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming following Monday’s ruling. Judge Matthew T. Schlep in the ruling argued that the agency lacked authority to implement the requirement. 

“The nature and breadth of the CMS mandate requires clear authorization from Congress — and Congress has provided none,” he wrote in the 32-page order.

The judge also said that CMS’ decision relied too heavily on data from long-term care facilities. 

​​”While a wide-sweeping mandate might make sense in the context of LTCs, based on CMS’s evidence, CMS presents no similar evidence for imposing a broad-sweeping mandate on the other fourteen [sic] covered facilities,” Schelp wrote.

“Because it is evident CMS significantly understates the burden that its mandate would impose on the ability of healthcare facilities to provide proper care, and thus, save lives, the public has an interest in maintaining the ‘status quo’ while the merits of the case are determined,” he later concluded.

Cory Kallheim, vice president of legal affairs and social accountability for LeadingAge, said late Monday that the ruling indicates the judge believes CMS may have overstepped with “too broad of a rule” and bypassed the administrative procedures act because CMS did not give notice and review comments before issuing its final rule. 

But he took notice of the judge’s admission that CMS may have enough evidence for an LTC-related rule.

“It will be interesting to see how that analysis moves forward throughout the courts as this moves along the way,” Kallheim told LeadingAge members on a coronavirus webinar.

The lawsuit is one of several challenging the CMS regulation, and the ruling comes after a Florida judge last week denied an effort trying to place a temporary restraining order on the rule.

“This is a big win for New Hampshire’s healthcare system,” New Hampshire Gov. Chris Sununu (R) said in a statement Monday afternoon posted to his website. “Nursing homes were at risk of closure if the Biden mandate remained in place. This helps maintain the staff New Hampshire needs to care for our loved ones.”

“This order means that CMS may not enforce its vaccine mandate against any facility within the State of New Hampshire until further notice,” added New Hampshire Attorney General John Formella (R). “We will continue to participate in this litigation and seek permanent relief, and we will provide further updates to the public as this litigation progresses.”

It is common for plaintiffs to file appeals in jurisdictions thought to be sympathetic to their cause. The opinion was signed by Schlep, a U.S. District Court Trump nominee. He was confirmed by a 72-23 Senate vote in February 2020.

Two other federal challenges are still outstanding. Kallheim said he anticipates initial rulings in cases filed in Louisiana and Texas courts in the next week or so. While the latter is solely on behalf of Texas interests, the former is being led by Montana Attorney General Austin Knudsen (R) and was joined by peers from Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, South Carolina, Utah and West Virginia as listed plaintiffs.

“I would keep planning as this may ultimately be upheld in those states,” Kallheim said, speaking to providers in the states that the Monday injunction covers. “In addition, keep in mind that you have the ability to move forward with the vaccination clinics and all those other things….There’s nothing that prohibits you as an employer from coming up with your own policies.”

Also on Monday, the Biden administration said that federal workers who do not comply with their federal vaccination mandate will not face possible penalties as serious as suspension or removal until January. The vaccination compliance rate has risen above 96% in recent days, which includes 4.5% who have received or are expecting exemptions,  officials said.

In the meantime, federal agencies are to conduct more education and counseling of workers who are not yet fully vaccinated, according to the White House Office of Management and Budget on Monday.