CMS Sued by Ten States Over Vaccine Mandate for Healthcare Workers

Ten states led by Missouri Attorney General Eric Schmitt and Nebraska Attorney General Doug Peterson have filed a lawsuit against CMS and the Biden Administration challenging the COVID-19 vaccine mandate for healthcare workers.

Recently, CMS issued an Interim Final Rule (IFR) requiring COVID-19 vaccines for all workers at healthcare settings that participate in Medicare and Medicaid programs. The rule was created as a means to protect patients as COVID-19 continues to spread. Under the rule, 17 million healthcare workers must get be vaccinated by January 4, 2022.

The lawsuit suit filed by attorneys general in Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire claims that the interim final rule is unconstitutional and infringes on laws, such as the Administrative Procedure Act (APA), the 10th amendment, the Social Security Act, and other laws.

The attorney generals also argue that the CMS vaccine mandate fails to comply with the APA’s notice and comment requirements.

“CMS “believe[d] it would be impracticable and contrary to the public interest . . . to undertake normal notice and comment procedures… It thus found “good cause to waive” those procedures,” the attorney generals explain in the lawsuit.

In addition, the lawsuit argues that the CMS vaccine mandate will intensify healthcare staffing shortages, especially in rural areas where there are existing shortages.

“This case illustrates why the police power over compulsory vaccination has always been the province of—and still properly belongs to—the States. Vaccination requirements are matters that depend on local factors and conditions,”  the lawsuit states.

“Whatever might make sense in New York City, St. Louis, or Omaha could be decidedly counterproductive and harmful in rural communities like Memphis, Missouri or McCook, Nebraska.”

Prior to the lawsuit, CMS acknowledged concerns for healthcare workers shortages but dismissed concerns due to insufficient evidence.

“While we understand that there might be a certain number of [healthcare] workers who choose to do so, there is insufficient evidence to quantify and compare adverse impacts on patient and resident care associated with temporary staffing losses due to mandates and absences due to quarantine for known COVID-19 exposures and illness,” the agency wrote in a press release before the lawsuit.

The American Hospital Association (AHA) has expressed support for CMS’s vaccine mandate for healthcare staff.

“We welcome that the CMS regulation provides time to come into compliance, offers guidance on medical and religious exemptions, clarifies interactions with state and local laws, and provides a level playing field across health care facilities,” said Rick Pollack AHA president in a press release.