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Updated, multistate legal challenge targets ‘irrational’ COVID vaccine mandate

Opponents of the federal government’s COVID-19 vaccine mandate for health care workers are pursuing two new paths to defeating it. Both challenges cite the pandemic’s current, less critical stage as a rationale for ending an alleged imposition on health care 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 health care 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 circumvent the Administrative Procedure Act’s notice and -circumvent commenting requirements.”

That effort came two weeks after the Biden administration asked a federal court to throw out a remaining legal challenge in the U.S. District Court for the Eastern District of Missouri. Biden’s lawyers said the continued challenge was undeniable, given the fact that the Supreme Court had allowed the mandate to take effect in late February.

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

“CMS adopted a rigid one-size-fits-all rule that did not account for the arrival of a new dominant variant against which the vaccines are ineffective in stopping transmission,” the lawyers argued, citing the emergence of the relatively less lethal omicron variant and calls the still-active mandate “irrational.”

These complaints are in addition to new or renewed allegations that the pandemic-era rule improperly bypassed the normal rulemaking process and that it contributed significantly to staffing shortages.

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

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

Jon Lipps, vice president of legal affairs at LeadingAge, told members during a COVID-19 call last week that the petition is an unknown mechanism available to any member of the public who wants a public agency to act on an unregulated issue or repeal a rule already in place.

“There’s a long way to go to figure out what’s happening,” 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 has made its commitment to COVID vaccines clear in recent days in light of a possible winter surge and other, new variants beyond delta and omicron.

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

The White House announcement included a reminder that nursing homes are required under the mandate to educate staff and residents about the effectiveness of shots and to offer vaccinations to residents. Still, some nursing homes reported that 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. “Facility that does not comply with the requirement to offer and educate about the benefit of life-saving COVID-19 vaccinations will face enforcement actions, including the need to submit corrective action plans to achieve compliance.”

CMS and HHS officials have repeatedly said 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 by about 44% by mid-November, although 86.6% percent had received their initial vaccine series. Among staff, booster coverage was only at 23.7%. Additional doses beyond the first required to complete a series are not prescribed for health care workers.

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