A nurse refusing a vaccine shot

Opponents of the federal government’s COVID-19 vaccine mandate for healthcare workers are pursuing two fresh pathways to defeat it. Both challenges cite the pandemic’s current, less critical stage as a rationale to end an alleged imposition on healthcare workers and their employers.

Earlier this month, a group of 22 states sent a regulatory petition to the Centers for Medicare & Medicaid Services, asking the agency to rescind its rule for healthcare workers. In the petition sent to HHS Secretary Xavier Becerra, attorneys general led by Austin Knudsen (R) of Montana argued that the rule “relied on a purported emergency … to sidestep the Administrative Procedure Act’s notice-and-comment requirements.”

That effort came two weeks after the Biden administration asked a federal court to toss a remaining legal challenge in the US District Court for the Eastern District of Missouri. Biden’s attorneys said that ongoing challenge was moot, given the fact that the Supreme Court had allowed the mandate to take effect starting in late February.

Instead, attorneys for the 10 states involved there filed an amended complaint last week, taking a similar tact as the states involved in the Nov. 17 petition.

“CMS adopted a rigid one-size-fits-all rule that did not account for the advent of a new dominant variant against which the vaccines are ineffective at stopping transmission,” the attorneys argued, citing the rise of the relatively less deadly omicron variant and calling the still-active mandate “irrational.”

Those complaints are in addition to new or renewed allegations that the pandemic-era rule wrongfully skirted the normal rule-making process and that it has contributed significantly to staffing shortages. 

“The CMS vaccine mandate threatens the jobs of millions of healthcare workers who risked their lives in the early days of the COVID-19 pandemic to care for strangers and friends in their communities,” the attorneys said in the amended complaint. “The CMS vaccine mandate also threatens to exacerbate the alarming shortage of healthcare workers, particularly in rural communities, that has already reached a tipping point. Indeed, the circumstances in the Plaintiff States … foreshadow an impending disaster in the healthcare industry.”

It’s unclear at this point whether either challenge stands a chance of earning a new court hearing or potentially overturning the mandate.

Jon Lipps, vice president of legal affairs at LeadingAge, told members on a COVID-19 call last week that the petition was a little-known mechanism available to any member of the public who would like a public agency to take action on an unregulated issue or rescind a rule already in place.

“There’s a long ways to go in terms of finding out what happens,” Lips said, adding that CMS must issue a response to the petition. If the agency denies it, Lips added, officials will have to explain why.

Agency remains bullish on vaccines

CMS in recent days has made clear its commitment to COVID vaccines in the face of a potential winter surge and other, new variants beyond delta and omicron.

The agency was part of a larger White House announcement last week regarding a $475 million campaign to raise the COVID-19 vaccination rate among nursing home residents by year’s end.

The White House announcement included a reminder that nursing homes are required under the mandate to educate staff and residents on the efficacy of shots and to offer vaccinations to residents. Yet some nursing homes  were reporting no residents had received the updated bivalent vaccine, CMS said.

“CMS will make clear that nursing homes with low vaccination rates will be referred to state survey agencies for close scrutiny,” a White House statement added. “Facilities that do not comply with the requirement to offer and educate on the benefit of lifesaving COVID-19 vaccinations will face enforcement actions, including the need to submit corrective action plans to achieve compliance.”

CMS and HHS officials have said repeatedly that being up-to-date on COVID vaccines reduces the chance of being hospitalized or dying from the virus.

The number of residents considered up-to-date on boosters had stalled around 44% as of mid-November, though 86.6% percent had received their initial vaccine series. Among staff, booster coverage was only at 23.7%. Additional doses beyond the first needed to complete a series have not been mandated for healthcare workers.