Louisiana leads 16-state coalition in amended CMS Lawsuit

BATON ROUGE, LA – Louisiana Attorney General Jeff Landry continues the fight to protect our healthcare heroes from the Biden administration’s COVID-19 vaccination mandate. In a new action filed today, Attorney General Landry led a 16-state coalition to ask a federal judge to once again block the federal government from enforcing the mandate in their respective states before it goes into effect.

The unlawful mandate for facilities that receive Medicare or Medicaid funding from the U.S. Department of Health and Human Services is “causing havoc in the healthcare labor market” across the nation – especially in rural communities – and does not account for the pandemic’s changing circumstances.

“The CMS vaccination rule remains a misguided, one-size-fits-all, job-killing directive that does not account for any change in circumstances – including how the vaccines do not stop the transmission of the Omicron variant,” said Attorney General Jeff Landry. “What’s more: the federal government has now made clear that it expects the states to implement this flawed policy with state employees. So I will continue fighting this ill-advised invasion of individual autonomy and my state’s rights.”

The filing, which is the latest the ongoing case against President Biden’s vaccine mandate for health care workers, seeks to stop the federal government from enforcing the mandate in Louisiana before the February 14 deadline by which workers at covered facilities must have received a first dose of a COVID-19 vaccine or have a pending or approved application for an exemption.

According to data published by the AARP Public Policy Institute, nursing home and long-term care facilities are already facing the worst shortage of nurses and/or aides since the government began collecting this information from nursing homes in May 2020. Low staffing levels in nursing homes—particularly among registered nurses—are associated with worse outcomes for residents, including more COVID-19 cases, deaths, and a higher likelihood of outbreaks. The mandate will make these problems worse. “By forcing healthcare workers to choose between their jobs or an experimental vaccine they do not want, CMS is affirmatively pinching an already strained work-force—and particularly so in rural areas within the States,” the lawsuit reads.

Recognizing this workforce shortage and the untenable position in which it places covered healthcare facilities, federal guidance permits vaccinated employees who are testing positive for COVID-19 to return to work while prohibiting unvaccinated healthcare employees from working unless they obtain an exemption.

As the milder Omicron variant now accounts for 99.9 percent of COVID-19 cases in the country, the Biden administration’s rationale for rushing the mandate without the legally required opportunity for the public to comment no longer exists. Additionally, merging research shows that standard COVID-19 vaccinations provide little protection against transmission of the Omicron variant, and federal authorities have begun to walk back prior claims about the efficacy of the vaccines against this now-dominant variant.

Meanwhile, new guidance from the federal government issued after the U.S. Supreme Court decision imposed a brand-new vaccine mandate on state employees who survey and report whether Medicare and Medicaid facilities are complying with applicable regulations, including the mandate itself. This constitutes an “independent, substantive rule, and yet CMS failed utterly to comply with the procedures required by [federal law]” yet again.

The CMS COVID-19 vaccine mandate also violates the Tenth Amendment, the Spending Clause, the Anti-Commandeering Doctrine, and the Nondelegation Doctrine.

The case number is 3:21-cv-03970 in the U.S. District Court for the Western District of Louisiana. Louisiana is joined by Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia, and West Virginia.