The federal requirement that nursing homes must vaccinate staff against COVID-19 is temporarily suspended after a judge’s ruling this week in Louisiana. The move, which came amid concerns over the omicron variant of the coronavirus, could ease pressure on nursing homes facing staff shortages, but for now leaves vaccination rules in an uncertain status.
In November, the Centers for Medicare & Medicaid Services (CMS) issued emergency regulations requiring nursing homes participating in Medicare and Medicaid to have all non-exempt staff. get their first vaccination by December 6 and their final dose by January 4. But this warrant was canceled, temporarily, by Tuesday’s decision by Judge Terry A. Doughty of the United States District Court for the Western District of Louisiana.
The Louisiana district court ruling applies nationwide, except for 10 states already covered by a separate preliminary injunction issued by a Missouri federal court. Wisconsin was not one of those 10 states.
The Louisiana court granted a preliminary injunction prohibiting the implementation of the vaccination mandate until the court resolves the case before it or until the United States Court of Appeals for the Fifth Circuit or the Supreme Court of the United States issues an order on the matter. The injunction was sought by Louisiana and 13 other states, from Georgia to Utah. The federal government appealed the injunction on Wednesday.
Following the nationwide preliminary injunction, nursing homes – for now – are not subject to the federal obligation to vaccinate non-exempt staff. However, operators should watch for other legal actions that could reinstate the mandate and should prepare to comply with vaccine requirements if necessary.
Justice Doughty concluded that CMS did not have the power to impose the vaccination mandate. He believed the mandate did not go through public notice and comment, should be imposed (if at all) by Congress rather than a government agency, violated Social Security law and would harm patients by loss of staff and funding. Further, the judge wrote, CMS and the Department of Health and Human Services did not consider “obvious alternatives” such as daily or weekly tests, masks, social distancing or natural immunity. “The rejection of natural immunity as an alternative is puzzling,” Justice Doughty wrote. He noted that fully vaccinated people can still be infected, and he questioned the benefits of vaccines and the need to make them mandatory when the Centers for Disease Control recommends booster shots after a full vaccination.
The court ruled that the 14 states seeking the injunction would suffer irreparable harm from the encroachment on their state powers and the costs associated with the execution of the warrant, that the freedom of their citizens would be compromised if they had to choose between losing their jobs or getting vaccinated, and their facilities would face higher costs as a result of the mandate being enforced or the loss of federal funding. Constitutional and freedom interests take precedence over the federal government’s public safety interests, the judge concluded.
The judge extended the injunction beyond the 14 states involved in the case and applied it nationally to protect unvaccinated healthcare workers in other states.
Judge Doughty was appointed by former President Donald Trump.
The long-term care industry reacted favorably to the decision. Mark Parkinson, president and CEO of the American Health Care Association and the National Center for Assisted Living, AHCA / NCAL, issued this statement: âWe appreciate the US District Court for the Western District of Louisiana who issued this injunction. We have always supported the vaccination of as many residents and staff as possible. However, we are deeply concerned that the current mandate issued by CMS will result in a loss of staff in nursing homes at a time when we are already grappling with a historic work crisis. We continue to urge CMS to allow a regular testing option for unvaccinated staff and, therefore, to support any legal remedies or CMS action that results in this solution. “
A separate US Department of Labor vaccine mandate, applying to private employers with 100 or more workers, has also been temporarily blocked by a lawsuit.
 The vaccination mandate exempts personnel with certain medical conditions or recognized religious beliefs.
Â© 2021 Davis | Kuelthau, sc All rights reservedRevue nationale de droit, volume XI, number 337