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Health-Care Worker Vaccine Mandate Challenged by 10 States (1)

Nov. 10, 2021, 10:01 PMUpdated: Nov. 10, 2021, 10:16 PM

Missouri, Nebraska, and eight other states on Wednesday sued to halt the Biden administration’s mandate that health-care workers at facilities paid by Medicaid and Medicare get a Covid-19 vaccine.

The lawsuit, filed in the U.S. District Court for the Eastern District of Missouri, marks the first legal challenge to the Medicare agency’s rule. A separate vaccinate-or-test mandate for employees at larger companies is on hold pending further litigation.

The states are calling into question the Centers for Medicare & Medicaid Services’ authority to implement the mandate for health-care workers. They also argue the requirement will exacerbate the current shortage of workers, particularly in rural areas.

The CMS vaccine mandate “threatens with job loss millions of healthcare workers who risked their lives in the early days of the COVID-19 pandemic to care for strangers and friends in their communities,” the complaint said. “The Plaintiff States seek to end this dragooning of our States’ healthcare heroes.”

The pandemic has made many burnt-out health workers leave their jobs and increased sick leave among staff, heightening workforce shortages in the industry.

When the rule was released, the CMS said it did not expect any “widespread resignations” to come from the mandate. While some workers could leave the industry, others will flock to open jobs, evening out the impact of resignations, the CMS said.

“If CMS is wrong in its optimism that ‘nearly all health care workers’ will submit to the mandate, the results will be disastrous,” the states said.

The states claim the CMS violated the Administrative Procedure Act by “failing to consider—or arbitrarily rejecting—important factors affecting the efficacy of a policy.” They also contest that the agency published the rule without giving the public an opportunity to issue feedback.

Legal observers have said they believe the rule is on firm footing, citing the religious and medical exemptions it allows for and the authority a federally administered program has to govern the terms of participation.

The states are requesting that the court block the CMS mandate.

Causes of Action: Violation of the APA, violation of the Social Security Act.

Relief: Preliminary, permanent injunctive relief.

Attorneys: Attorneys general for the states are representing the plaintiffs.

Response: The CMS declined to comment on ongoing litigation.

The case is Missouri v. Biden, E.D. Mo., No. 4:21-cv-01329, complaint filed 11/10/21.

(Updated with response from CMS.)

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com