CMS Vaccine Mandate Blocked in 10 States

First it was the COVID-19 vaccination mandate from the U.S. Occupational Safety and Health Administration (OSHA). Now, it’s the one from the Centers for Medicare & Medicaid Services (CMS).

Since OSHA and CMS released their interim emergency regulations requiring COVID-19 vaccinations for certain individuals, each has been challenged in court. On Monday, a federal judge in Missouri issued an order partially blocking the Biden administration from implementing the CMS mandate in 10 states.

U.S. District Judge Matthew Schelp said that CMS does not have authority to force home health agencies, skilled nursing facilities (SNFs), hospitals and other health care providers paid by Medicare and Medicaid to vaccinate all of their employees.

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“Truly, the impact of this mandate reaches far beyond COVID,” the judge wrote. “CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans.”

The order came a little over two weeks after the 10 states — Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming — filed a lawsuit against President Joe Biden and key administration officials. Their nearly 60-page complaint argued the mandate is unlawful and would negatively impact 76,000 providers across the country.

“The plaintiff states seek to end this dragooning of our states’ health care heroes,” the complaint stated. “Critically, the CMS vaccine mandate also threatens to exacerbate an alarming shortage of health care workers, particularly in rural communities, that has already reached a boiling point.”

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Under the CMS interim emergency regulation, certain health care workers need to have received one shot of a two-dose vaccine — or one dose of the Johnson & Johnson (NYSE: JNJ) vaccine — by Dec. 5. They must then be fully vaccinated by Jan. 4 of next year.

Only providers covered by the Medicare and Medicaid Conditions of Participation (CoPs) are impacted by the CMS mandate. Home- and community-based services (HCBS) providers are not included in the regulations, nor are assisted living facilities, group homes or physician’s offices.

The Missouri judge said he believes that the “public would suffer little, if any, harm from maintaining the ‘status quo’ through the litigation of this case.”

Schelp repeatedly cited concerns around exacerbating shortages of health care workers.

“In sum, Plaintiffs’ evidence shows that facilities — rural facilities in particular — likely would face crisis standards of care or will have no choice but to close to new patients or close altogether, both of which would cause significant, and irreparable, harm to Plaintiffs’ citizens,” he wrote.

Originally, the Biden administration planned on rolling out a nationwide mandate for mainly nursing homes, leaving out home health agencies and other providers.

Immediately, the nursing home industry cried foul, rightfully arguing that a setting-specific mandate would create a massive migration of health care workers from regulated to unregulated industries.

Ironically, considering the concerns outlined by the 10 states in their lawsuit, a state-specific block on the CMS mandate may have a similar effect.

Several individual states and cities already adopted their own vaccine mandates prior to federal ones.

The Missouri judge also said CMS improperly bypassed its standard notice and comment requirements.

“Even if CMS has the authority to implement the vaccine mandate — which the Court finds is unlikely, as discussed above — the mandate is likely an unlawful promulgation of regulations,” Schelp wrote.

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