10-State Injunction Buys Nursing Homes More Time On Vaccine Mandate

November 29, 2021, Amy Stulick, Skilled Nursing News - The U.S. District Court for the Eastern District of Missouri on Monday issued a preliminary injunction against the Biden administration’s COVID-19 vaccine mandate, blocking the requirement for health care workers in 10 states.  Nursing homes in Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire won’t have to adhere to the mandate while the injunction is in effect, according to the ruling.

If the injunction is appealed, the case would go to the Eighth Circuit Court of Appeals.  Mandate guidance published by the Centers for Medicare & Medicaid Services (CMS) stipulates health care workers in any setting that receives Medicaid and Medicare reimbursement, including nursing homes, must be fully vaccinated against COVID-19 by Jan. 4 — the deadline for the first dose of the two-dose Moderna and Pfizer vaccines is next week.

U.S. District Court Judge Matthew Schelp said the mandate is agency overreach when he issued the injunction; Congressional authorization and a closer look at the “economic and political significance” of the mandate is needed, he wrote in the ruling.  He also called for a comment period before implementation.

“The mandate’s economic cost is overwhelming. CMS estimates that compliance with the mandate — just in the first year — is around $1.38 billion dollars,” Schelp wrote.  “Those costs, though, do not take into account the economic significance this mandate has from the effects on facilities closing or limiting services and a significant exodus of employees that choose not to receive a vaccination.”  The lawsuit, originally filed on Nov. 10 by attorneys general for the states, argues that implementation of the vaccine mandate will only worsen the workforce crisis, especially in rural communities.

“Vaccination requirements are matters that depend on local factors and conditions,” the lawsuit claims.  “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.”

The lawsuit alleges substantive and procedural violation of the Administrative Procedure Act; procedural violation of the Social Security Act; failure to consult with appropriate state agencies; failure to prepare regulatory impact analysis; unconstitutional exercise of the spending power; violation of the anti-commandeering doctrine, and violation of the 10th Amendment and federalism.

The decision stands in stark contrast to a similar lawsuit in Florida.  There, Judge M. Casey Rodgers said she would not temporarily pause the mandate while the case was being litigated.  Florida officials asked a U.S. District Court for the Northern District of Florida judge to prevent CMS from enforcing the mandate, following the state’s lawsuit filed against the agency mandate on Nov. 17.

Rodgers said the state would not be irreparably injured if the mandate wasn’t suspended before Dec. 6, the date of the first mandate deadline.  Affidavits express opinions from agency leadership who estimate a lost percentage of employees and speculate consequences.  “ … Such opinions, absent supporting factual evidence, remain speculative and may be disregarded as conclusory,” Rodgers wrote.

There are four cases currently challenging the mandate, including the Florida and Missouri lawsuits, involving more than half of the 50 states.