A coalition of 22 states led by Montana Attorney General Austin Knudsen (R), today formally called on the Biden administration to withdraw its COVID-19 vaccine mandate for nursing home workers and other healthcare workers in Medicare and Medicaid-funded facilities, as well as all related guidance.
The coalition of attorneys general filed its petition Thursday under the Administrative Procedures Act requesting the US Department of Health and Human Services and the Centers for Medicare & Medicaid Services take immediate action to repeal its interim final rule and state surveyor guidance, which require participating healthcare facilities to “develop and implement policies and procedures to ensure that all staff are fully vaccinated for COVID-19.”
“The Biden administration relied on a purported emergency to sidestep its normal requirements,” the attorneys general said, adding that the mandate has limited many peoples’ access to medical care and affected the livelihoods of healthcare workers.
“As a result of the IFR, significant numbers of their citizens who are healthcare employees have been forced to submit to bodily invasion, navigate exemption processes or lose their jobs and their livelihoods,” the petition states. “All their citizens will suffer as a result of the predictable and conceded exacerbation of labor shortages in hospitals and other healthcare facilities.”
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.
As of Nov. 6, 86.7% of nursing home staff members have completed primary vaccination, although only about a quarter are up to date on their vaccinations, including boosters, according to CMS. The mandate allowed for some exemptions.
Attorneys general from Arizona, Louisiana, and Tennessee helped Knudsen lead the effort. 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.
The mandate has been challenged several times since it was introduced in late 2021, but in January, the Supreme Court voted 5-4 to let the CMS mandate proceed, lifting two injunctions against it. At the time, the justices wrote that one function of HHS, of which CMS is a part, and “perhaps the most basic, given the department’s core mission — is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” At the same time, the court ruled against the Occupational Safety and Health Administration’s employer mandate, which it later withdrew.
Just last month, the justices rejected an appeal over the CMS mandate that had been brought in May by attorneys general in 10 states — Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming — after the St. Louis-based US Court of Appeals for the 8th Circuit declined to hear their petition. Also in October, CMS relaxed its instructions to surveyors related to checking for staff compliance with the mandate, after having reduced vaccine mandate compliance surveys in June.
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