Despite many legal analysts’ view that the Centers for Medicare & Medicaid Services’ healthcare worker vaccination mandate will clear legal muster, a group of 10 states have filed suit to stop it.
The states filed suit Wednesday in the U.S. District Court for the Eastern District of Missouri, suing the Biden administration and a variety of public health agencies. They claim that the rule is an overreach that exhibits a lack of proper consultation with states and impact analyses, among other shortcomings. Parties to the lawsuit are Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
“Vaccination requirements are matters that depend on local factors and conditions. Whatever might make sense in New York City, St. Louis, or Omaha could be decidedly counterproductive and harmful in rural communities,” the complaint reads in part.
The filing, supported by nine Republican and one Democratic attorneys general, says that CMS “acted arbitrarily and capriciously” in issuing the emergency rule, which could have extremely negative effects on employers and providers in areas already facing staffing shortages.
Both major U.S. nursing home associations have issued similar warnings. They note that many providers are already struggling to staff facilities — and in some cases have halted or restricted admissions due to insufficient staffing.
“We have always supported vaccinating as many residents and staff as possible. However, we are deeply concerned that nursing homes in vaccine hesitant communities will lose staff at a time when we are already grappling with a historic labor crisis,” said American Health Care Association President and CEO Mark Parkinson in response to a McKnight’s inquiry about the lawsuit filing. “We continue to urge CMS to allow a regular testing option for unvaccinated staff and, therefore, support any legal remedy or CMS action that would bring about this solution.”
A spokeswoman for LeadingAge, which held a members-only webinar on preparation for the emergency rule’s Dec. 5 and Jan. 4 deadlines on Thursday, said preparations are continuing unabated.
“We are working with members on details of compliance with the rule so they are prepared and can implement it as required by the deadline,” she told McKnight’s Long-Term Care News.
The CMS mandate was announced Nov. 4 along with a companion mandate rule from the Occupational Health and Safety Administration rule aimed at private employers with more than 100 workers. The latter was almost immediately hit with court challenges and subsequently was placed under a temporary restraining order by a federal appeals court.
Many thought the healthcare worker conditions would not be as likely to face lawsuits or a stoppage. Some 76,000 Medicare- and Medicaid-funded providers currently have until Dec. 5 to come up with plans for executing medical or religious exemptions en route to 100% staff vaccination by a Jan. 4 deadline.
Many seeking relief
The plaintiffs are asking the judicial branch to strike down the mandate due to procedural missteps under the Administrative Procedure Act, Social Security Act and a variety of other standards.
Certain special interest, labor and political groups have also spoken out against the CMS mandate.
It applies to more than 17 million healthcare workers, the agency says. The regulation “will create a consistent standard within Medicare and Medicaid while giving patients assurance of the vaccination status of those delivering care,” it said in introducing it.
Since the White House announced in mid-August that a federal mandate would be imposed, nursing home staff vaccination rates increased by approximately nine percentage points – from 62% to 71% — as of the last week of October.
Unlike the OSHA mandate, CMS’s conditions would not allow healthcare employees a test-out option. Many clinicians cheered that move, saying that tests only detect but do not decrease the likelihood of transmitting the virus or lessening its ill effects.
The largest nursing home association in the U.S. issued a six-point wishlist right after the original August announcement that nursing home workers alone would be the subject of a vaccination mandate. At the top of it was a demand that any mandate include all healthcare workers — something CMS soon agreed to.
At the time, AHCA also requested there be a daily COVID-19 testing alternative for employees who refuse to get the shots.
In addition, the association asked the federal government to fund a $25 million enhanced education program aimed at employees who remain unvaccinated. The group also has appealed for $3 billion to help pay for agency staffing if vaccine-averse employees leave, and to administer a new wave of inoculations.
Another AHCA point of emphasis: Providers should be allowed to ask visitors about their vaccination and test results — and require vaccination or negative tests prior to visits. CMS told McKnight’s earlier this week that additional guidance about surveyor requirements would be issued soon.