In a partial win for the Biden administration, the 5th U.S. Circuit Court of Appeals on Wednesday revived the health care worker vaccine mandate in 26 states.
A three judge New Orleans-based panel ruled that a lower court injunction only had the authority to block the mandate in 14 states involved in the lawsuit: Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia.
A federal judge in Louisiana issued a nationwide preliminary injunction on Nov. 30, freezing the start of President Biden’s COVID-19 vaccine mandate for health care workers across the country.
“The question posed is whether one district court should make a binding judgment for the entire country,” the appeals panel wrote. “The district court here gave little justification for issuing an injunction outside the 14 states that brought this suit.”
One day after the appeals court decision, CMS asked the Supreme Court to stay injunctions issued by the lower courts in Louisiana, Missouri and Texas.
Aging service advocacy groups continue to make the case for vaccinations – and mandates – to membership in light of Wednesday’s court ruling. Some continue to express concern over how the mandate will affect the industry wide workforce shortage.
“We respect the decision of the Fifth Circuit but remain concerned that implementing the CMS vaccine mandate will exacerbate the long term care sector’s historic labor crisis,” the American Health Care Association and National Center for Assisted Living (AHCA/NCAL) said in a statement. “Given the legal seesaw and anticipated additional challenges through the courts, we ask that CMS and state surveyors show leniency to providers and staff during this uncertain time.”
The association encourages long-term care members to continue staff vaccination efforts despite court rulings, while also lamenting the lack of a test-out option.
“Mandates work. Having fully vaccinated staff and residents ensures that everything possible is being done to deliver safe, quality care to older adults,” Katie Smith Sloan, president and CEO of nonprofit aging services association LeadingAge, said in a statement.
The court relied on a doctrine mentioned in a recent decision to stay the Occupational Safety and Health Administration (OSHA) vaccine mandate, but questioned the strength of U.S. Department of Health and Human Services Secretary Xavier Becerra’s argument in favor of the mandate stay.
Becerra identified “meaningful distinctions” between the CMS mandate and broader OSHA rule, the judges wrote; He argued the statutory authority for the rule in each case is different, one enacted under the Spending Clause and OSHA’s via the Commerce Clause.
Becerra also said facilities the agency seeks to target with the CMS mandate, specifically mentioning nursing homes, were at the greatest risk of serious COVID-19 cases.
“We cannot say that the Secretary has made a strong showing of likely success on the merits,” the judges noted.
The following 10 states – Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota and South Dakota – were already exempted from the Louisiana injunction since they are involved in another lawsuit challenging the vaccine mandate; a separate preliminary injunction was issued a day before the Louisiana ruling from a Missouri federal judge.
The Centers for Medicare & Medicaid Services (CMS) appealed both court decisions on Dec. 2, filing motions for stays of these orders.
The agency’s vaccination rule was first announced Aug. 18 for nursing homes only, before CMS expanded the mandate in September for all health care settings that receive Medicare or Medicaid; guidance issued Nov. 4 added all health care workers must be fully vaccinated by Jan. 4.
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