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Vaccine Mandate Halt Seen Complicating Future Pandemic Fights (1)

Nov. 30, 2021, 8:31 PMUpdated: Nov. 30, 2021, 11:30 PM

The federal government’s ability to stop the spread of a whole host of infectious diseases in health facilities could be threatened if the reasoning behind a federal court’s decision to block President Joe Biden‘s vaccine mandate for health-care workers is adopted by other courts, some legal scholars say.

These scholars say the government has long used Medicare and Medicaid funding to set safety standards that health facilities must follow. But a federal court judge in Missouri undermined that power when it said the agency needs Congress’s permission before it can require Covid-19 vaccines, they say.

“The idea that CMS can’t use its authority in this way unless Congress is explicit is really extraordinary and really would unwind just enumerable health and safety measures that regulate health care,” said Wendy Parmet, faculty director of the Center for Health Policy and Law at Northeastern University School of Law, noting the safety protocols hospitals must follow to stop the spread of MRSA, a bacterial infection that’s hard to treat, as just one example.

Judge Matthew Schelp, on the U.S. District Court for the Eastern District of Missouri, said the nature and breadth of the Centers for Medicare & Medicaid Services mandate requires clear authorization from Congress because it goes beyond the agency’s general authority to enact health and safety regulations for program recipients.

“What this kind of language does when courts write and make these asides, and offer these alternative grounds of reasoning, what this can do is invite other litigation,” Parmet said.

Schelp’s decision temporarily blocks the Biden administration from enforcing its mandate for health-care workers in the 10 states that filed the lawsuit. It is the first victory for challengers to the mandate—one of four lawsuits Republican-led states filed against the CMS rule.

Courts are split on whether the states’ complaints meet the standards for a preliminary injunction, which require a threat of irreparable harm, a balance between harm and injury, and a likelihood that the states’ argument will succeed, said Lawrence Vernaglia, a partner at Foley & Lardner LLP.

The U.S. District Court for the Western District of Louisiana on Tuesday afternoon issued a preliminary injunction that prevents the administration from enforcing the mandate nationwide—except for in 10 states already included in the Schelp order.

However, a federal judge in Florida chose not to block the rule in a separate suit, and one other request for an injunction remain undecided.

‘Injects More Unpredictability’

“A lawsuit like this just injects more unpredictability, and when you’re managing and responding to a pandemic, predictability is a premium,” said Jared Kosin, president and chief executive officer of the Alaska State Hospital and Nursing Home Association. Alaska is one of the states where the Biden administration can’t currently enforce the rule.

The CMS mandate requires nearly every employee, volunteer, and third-party contractor at health-care facilities participating in Medicare and Medicaid programs to be vaccinated against Covid-19, and to have received at least their first dose of the vaccine before Dec. 6.

The federal government notified the U.S. Court of Appeals for the Eighth Circuit on Tuesday that it is appealing the court’s ruling. It’s unclear what the appeals court will decide to do but if it adopts the lower court’s reasoning to keep the injunction in place, it could be the start of a worrisome trend, Parmet said.

“It’s potentially a very far-reaching attack on the federal administrative state and, depending on how far it goes, could rewind us closer to the 19th century,” she said. “I don’t know that we want to go there, and I don’t know the Supreme Court justices have all really thought through the implications.”

Dorit Reiss, a professor at the University of California Hastings College of the Law, said she’d be surprised if an appeals court upheld the stay because it’s so in tension with existing law, but she said the appellate court could point to something more narrow to do so.

CMS and Safe Care

It’s well established that federally administered programs can choose the rules participants have to follow to receive funding, legal observers said. The “CMS wants to pay for safe care,” Vernaglia said.

“Staff in any health care setting who remain unvaccinated pose both direct and indirect threats to patient safety and population health,” a CMS spokesperson said. The agency may expedite the rulemaking process “given the rapidly evolving public health emergency,” the CMS said.

With the new omicron variant of coronavirus spreading across the globe, Reiss said the stay could do a lot of damage.

“The longer this is delayed, the longer there are no protections for people in the hospital,” she said.

Pressing Ahead With Mandates

The injunction isn’t permanent at this point, and health facilities in the 10 states can still mandate the vaccine and fire employees who don’t comply. Since many employers already chose to do so before the Biden administration forced their hand, “it’s entirely possible that hospitals, even in those jurisdictions, will continue to press forward with vaccine mandates,” Vernaglia said.

The Eighth Circuit is known as a more conservative court with just one active or senior status judge appointed by a Democrat out of 14. But it’s impossible to predict how the circuit will rule, and other states shouldn’t hold their breath for a similar outcome, Vernaglia said.

“Every court is going to look at the facts presented to it individually,” said Scott Witlin, a partner at Barnes & Thornburg LLP. A pattern of successful arguments “about the nature of administrative action” is beginning to appear between this injunction and the rulings on a similar mandate for large employers, Witlin said.

If a facility decides a mandate is in the best interest of protecting their workforce and patients, “they should continue to impose that vaccine mandate,” Vernaglia said.

(Updates eight and ninth paragraphs with nationwide injunction by federal court in Louisiana. )

To contact the reporters on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com; Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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