Led by Montana Attorney General Austin Knudsen (R), the coalition late Thursday filed a 39-page petition under the Administrative Procedures Act requesting the US Department of Health and Human Services and the Centers for Medicare and Medicaid Services take immediate action to repeal its interim final rule and state surveyor guidance. Together, those regulations require participating healthcare facilities to develop and implement policies and procedures to ensure that all staff are fully vaccinated for COVID-19.
The agency’s right to adopt the mandate was upheld by the Supreme Court, and many other legal challenges have been denied since shots became mandatory early this year.
But the attorneys general on Wednesday argued that the Biden administration “relied on a purported emergency” to sidestep its normal rule-making requirements. They alleged that adding that the mandate has limited access to medical care and affected the livelihoods of healthcare workers. Both of those concepts were introduced in oral arguments at the Supreme Court in January.
Earlier this year, CMS Administrator Chiquita Brooks-LaSure insisted that vaccines had not led to major staff shortages.
“We have seen that healthcare systems that implement vaccine requirements are not experiencing dramatic staff losses,” Brooks-LaSure wrote after an initial deadline passed. “Vaccinated staff are instead more available to work since they are less likely to get sick.”
A later JAMA Health Forum study found that state COVID-19 vaccination mandates increased vaccinations among direct caregivers without negatively affecting staffing levels.
The interim final rule regulates more than 10 million healthcare workers and suppliers in the United States, the attorneys general noted. Of those, CMS estimated that 2.4 million were unvaccinated when it issued the rule.
Though residents in long-term rushed to get vaccinated before the mandate, they often found themselves being treated by unvaccinated caregivers. Today, the share of vaccinated residents is at 86.6%, and the share of vaccinated staff is at 86.7%. The less-than-full staff coverage is owed in part to exemptions that were built into mandate language.
CMS has not moved to make booster shots mandatory, though it does track the number of workers and residents who are considered “up-to-date” on additional shots.
But officials have remained bullish on shots, insisting that they are the best way to return to normalcy amid the ongoing pandemic. The agency, in line with the Centers for Disease Control & Prevention, recently relaxed source control, dining and other precautions that allows residents more freedom.
The petition to repeal the mandate is being led by attorneys general from Arizona, Louisiana, and Tennessee in addition to Montana. Attorneys general from Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Texas, Utah, Virginia and Wyoming also joined.