• The San Juan Daily Star

Ten states sue US over vaccine mandate for health care workers

Demonstrators attending a rally against vaccine mandates outside the Statehouse in Concord, N.H., in September.

By Reed Abelson

Ten states filed a lawsuit Wednesday seeking to block the Biden administration’s coronavirus vaccine mandate for health care workers, on the heels of a court decision that temporarily halted the broader U.S. requirement that workers of all large employers be vaccinated or undergo weekly testing.

The new suit, filed in U.S. District Court in eastern Missouri, claims the rule issued last week by the Centers for Medicare & Medicaid Services “threatens with job loss 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 10 states also argue the rule “threatens to exacerbate an alarming shortage of health care workers, particularly in rural communities, that has already reached a boiling point.” They say any further losses will only endanger patients, causing “devastating adverse effects on health care services.”

But the broader point echoes a separate lawsuit brought by many of the same Republican-led states against the private-employer mandate for those with 100 workers or more, contending that OSHA does not have the authority to dictate such policy.

In announcing the rule, the administration set a deadline of January for all 17 million health care workers to be fully vaccinated at health care facilities receiving government funding under the Medicare or Medicaid programs. Employees of hospitals and nursing homes, along with other medical sites, would not have the option of testing in lieu of immunization.

Federal officials said they could not comment on pending litigation, but legal experts said the agency generally has the ability to establish rules governing the organizations it pays to deliver care. “CMS has very broad authority to regulate Medicare-certified providers,” said Katrina A. Pagonis, a lawyer specializing in regulatory issues for Hooper, Lundy & Bookman.

The rule “is essentially a condition of participation” in federally funded programs, said Erin J. McLaughlin, a health care lawyer for Buchanan, Ingersoll & Rooney. The government invoked the Supremacy Clause in the Constitution to preempt state and local laws when issuing the rule.

President Joe Biden’s call for mandates followed months of pandemic outbreaks as the delta variant threatened regions of the country, some with low vaccination rates but also others with vulnerable populations like those in nursing homes that had just begun to recover from the devastating death toll of 2020.

Some public health experts have argued that breakthrough infections possibly caused by waning immunity six months or more after vaccination, especially among the elderly, was a factor in urging mandates for health care workers.

After a steady decline in infections earlier this year among nursing home staffs and residents, spikes in cases this past summer alarmed officials. Many nursing homes had large numbers of workers who remained unvaccinated even after Biden announced the plan to mandate immunizations.

Many medical societies came out in favor of strict mandates for health care workers, arguing these employees have a special obligation to keep their patients and colleagues safe. And many large, multistate hospital systems and large nursing home companies began requiring staff vaccination, although others lobbied against blanket requirements.

The administration said about 40% of all hospitals already require vaccinations. About 73% of nursing home workers are now vaccinated, according to federal data.

“It’s critical to us to make sure we’re ensuring the safety of residents living in nursing homes and other individuals in health care settings,” Chiquita Brooks-LaSure, the administrator for Medicare, said after the agency issued the new rule. Vaccinated staff members are less likely to get sick and spread COVID, she said.

Brooks-LaSure acknowledged providers’ concerns over losing workers who refuse to be vaccinated, but she said mandates often ease shortages because employees don’t become infected. “What we’re seeing on the ground is that they are not going to work because they are sick,” she said.

She also cited the experience in states that have issued requirements as evidence that vaccination rates will rise as a result of the government’s decision. Many large hospital systems and even city agencies that mandated the vaccine reported that only a small minority of employees were unwilling to be vaccinated.

But the 10 states — Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming — claim the federal government has overreached its authority to dictate what happens in their states. “This case illustrates why the police power over compulsory vaccination has always been the province of — and still properly belongs to — the states,” they argue in the lawsuit.

While some nursing homes and hospitals have expressed disappointment over the new rules, there is little expectation that large numbers would lose their government funding.

While Medicare has the authority to terminate providers that do not comply, Brooks-LaSure emphasized the agency’s approach will be to work with facilities. “Our focus is really on educating providers and getting people to be in compliance,” she said.

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