UPDATE: Dec. 1, 2021: A federal judge granted a preliminary injunction in another suit challenging the CMS vaccine mandate Tuesday, this one initiated by Republican lawmakers from Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia.
The scope of the injunction will be nationwide, though "this matter will ultimately be decided by a higher court than this one," Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana said in the ruling.
- A federal judge blocked CMS' COVID-19 vaccine mandate for healthcare workers Monday in an order from a lawsuit brought by 10 mostly rural states, court documents show.
- U.S. District Judge Matthew Schelp in the Eastern District of Missouri granted a preliminary injunction halting the federal agency from enforcing its mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming — pending a full judicial review. The judge argued CMS does not have the authority to enact such regulations.
- The rule requires healthcare facilities to have all their employees fully vaccinated by Jan. 4 or risk losing Medicare and Medicaid funding. Unlike other federal mandates, it does not allow for a weekly testing exception.
The fight over federal COVID-19 vaccine mandates is heating up with a fast-approaching deadline and a new variant on the rise. Other states have also filed federal lawsuits in Louisiana, Texas and Florida challenging the CMS rule.
Also on Monday, Supreme Court Justice Stephen Breyer refused to grant relief to workers at Mass General Brigham's health system in Boston challenging the mandate based on religious exemptions, without referring the case to his colleagues on the court or offering an explanation for the ruling.
The lawsuit brought by 10 states attorneys general challenges CMS' authority, and "plaintiffs are likely to succeed in their argument that Congress has not provided CMS the authority to enact the regulation at issue here," Schelp wrote in the ruling.
Another key argument in the lawsuit is staffing shortages, and how a mandate could exacerbate worsening labor strains as health systems grapple with widespread burnout and increasing turnover, especially in rural areas.
"Requiring healthcare workers to get a vaccination or face termination is unconstitutional and unlawful, and could exacerbate healthcare staffing shortages to the point of collapse, especially in Missouri's rural areas," the state's attorney general who led the lawsuit, Eric Schmitt, said in a Nov. 10 statement.
The lawsuit offered examples of providers that would be impacted by the mandate, including a general hospital in Nebraska whose sole anesthesiologist would resign if required to get vaccinated, according to court documents.
"Understandably, without an anesthesiologist, there could be no surgeries — at all. Thus, such a loss irreparably causes a cascading effect on the entire facility and a wide-range of patients," the lawsuit said.
Another example involves a building manager of a nursing home in Memphis, Missouri who said he would resign if required to get vaccinated, leaving "no one competent enough to run [the] building and [perform] all the complicated systems and required inspections," the lawsuit said.
In rural settings, particularly, such positions can be tricky to fill or to find replacements for, the lawsuit said.
But vaccine mandates have worked for some regional systems that implemented their own, like UNC Health and Novant Health in North Carolina. Staff vaccination rates rose to 97% and 99%, respectively, after the systems required the shots, according to a White House report.
Among Novant Health's 35,000 employees, about 375 were suspended for not complying, and about 200 of those suspended employees did end up getting vaccinated so they could return to work, according to the report.
Vaccination rates among healthcare workers are roughly in line with that of the general population. Some 30% of U.S. healthcare workers employed at hospitals remained unvaccinated as of Sept. 15, an analysis of Centers for Disease Control and Prevention data published by the Association for Professionals in Infection Control and Epidemiology found.
Under the CMS rule, hospitals, ambulatory surgery centers, dialysis facilities, home health agencies and long-term care facilities will have to ensure staff have received at least one dose before they can provide any care, treatment or services to patients by Sunday and be fully vaccinated by Jan. 4.
That will impact about 17 million healthcare workers at 76,000 facilities, according to the agency.