22-state petition for CMS to remove vaccination mandate for healthcare workers

A group of 22 states — led by Montana Attorney General Austin Knudsen — has asked the Centers for Medicare & Medicaid Services (CMS) to lift the COVID-19 vaccination mandate for Medicare and Medicaid healthcare workers.

The 22 states include Montana, Louisiana, Tennessee, Arizona, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Texas, Utah, Virginia and Wyoming .

On Thursday, the cohort of attorneys general filed their petition under the Administrative Procedures Act, urging the U.S. Department of Health and Human Services (HHS) and CMS to rescind the mandate, as well as any related guidance, requiring health organization workers to be fully vaccinated against COVID-19.

If a repeal of the immunization order were pushed forward, employees of Medicare-certified health officials would be affected.

In the petition, the attorneys general said that immunization regulations “significantly limit” many patients’ access to necessary medical care.

The petition also said the mandates restricted employment opportunities for healthcare workers and “forced them to choose vaccinations over unemployment”.

“Every employer struggles to fill their ranks, so I’m not sure it’s fair to blame staffing shortages at CMS-covered facilities on this vaccination mandate,” Martha Boyd, vice chair of Baker’s labor and employment practice group, Donelson, Bearman, Caldwell & Berkowitz, PC, to Home Health Care News.

Boyd noted that these staffing challenges may be a function of states that have enacted bans on vaccination mandates.

“People may leave the covered facility that needs the vaccine and go to another healthcare location, such as a doctor’s office, where they cannot enforce the vaccination mandate because it is unlawful under state law,” she said. “This is a problem created by these government bans on vaccinations.”

The National Association for Home Care & Hospice (NAHC) believes that lifting the vaccination mandate would have both advantages and disadvantages.

“[The] up — could slightly increase staff availability,” NAHC President William A. Dombi said in an email to HHCN. “Cons – may increase patients’ reluctance to allow home caregivers into their homes; can increase absenteeism due to staff contracts.”

This isn’t the first time the vaccination mandate has met with opposition.

In January, the Supreme Court voted 5-4 to retain the CMS mandate and lifted two injunctions attempting to block it.

Also last month, the Supreme Court denied appeals from attorneys general in 10 states. They wanted the court to review the legality of the mandate.

The difference this time, according to Boyd, is the strategy used to remove the mandate.

“I think it’s really a different process,” she said. “They are trying to do this directly through the administrative authorities, rather than through litigation. It’s a completely different route.”

Ultimately, NAHC believes there is not much chance that the vaccination mandate will be lifted.

“[It’s] probably not with this administration or the new Congress, but we would expect it to be addressed in the House and Senate,” Dombi said.