A week after 10 states sued the Biden administration over a vaccine mandate for health care workers in a federal court in the Eastern District of Missouri, Texas joined the fray by filing its own challenge in Amarillo federal court.
On November 5, 2021, nearly two months after President Biden announced his federal vaccine mandates, CMS published the CMS Vaccine Mandate. at 86 Fed. Reg. 61,555. The Texas 68 page civil complaint takes aim at the Centers for Medicare & Medicaid Services’ Interim Final Rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.”
The pleading claims that the new Rule “imposes an unprecedented federal vaccine mandate on nearly every full-time employee, part-time employee, student, intern, volunteer, and contractor working at a wide range of healthcare facilities receiving Medicare or Medicaid funding.” The CMS Vaccine Mandate covers fifteen categories of Medicare- and Medicaid-certified providers and suppliers.
“By expanding its reach in this way, the mandate broadly sweeps in a diverse set of healthcare providers. These include, among others, rural health clinics, hospitals, long-term-care facilities, and home health agencies. Id. at 61,569 – 70. Demonstrating the far reach of the mandate, CMS reported that “Medicare-participating hospitals . . . include nearly all hospitals in the U.S.””
And that the “CMS Vaccine Mandate threatens millions of healthcare workers with termination if they choose not to be vaccinated.”
“Critically, the CMS Vaccine Mandate also threatens to exacerbate an alarming shortage of healthcare workers, particularly in rural communities. The circumstances in Texas – which CMS did not fully consider because it skipped notice-and-comment rulemaking – foreshadow an impending disaster in the healthcare industry. By ignoring the facts on the ground and unreasonably dismissing concerns about workforce shortages, the CMS Vaccine Mandate jeopardizes the health of all Texans.”
The allegation of a “healthcare worker crisis” is backed up by citations to numerous state and federal studies, many of which predate the pandemic.
“For many years, the healthcare industry in the United States has been experiencing severe workforce shortages. “In 2019, the Association of American Medical Colleges issued a report projecting supply and demand for physicians nationally from 2017 to 2032. Results from this report indicate that there will be an estimated shortage of between 46,900 and 121,900 physicians nationwide by 2032. This projected shortage includes 21,100 to 55,200 primary care physicians and 24,800 to 65,800 specialty care physicians.” citing the Texas Physician Supply and Demand Projections, 2018-2032, HHSC (May 2020).
They cite as evidence an article published by the Associated Press reporting that when Houston Methodist imposed a vaccine mandate, more than 150 employees resigned or were fired.
Further the complaint states that “In the CMS Vaccine Mandate, an individual’s choice to get vaccinated is taken away, but no education regarding the vaccine’s benefits, risks, or side effects is required. CMS has seemingly decided that when healthcare staff have no choice in the matter, there is no reason to inform them of the potential consequences of the decision CMS has made for them. In promulgating the CMS Vaccine Mandate, CMS has traded the carrot for the stick.”
The complaint goes on to argue a legal basis for relief. “This case illustrates why the police power over compulsory vaccination has always been the province of – and still properly belongs to the States. Vaccination requirements are matters that depend on local factors and conditions. Whatever might make sense in other States could be decidedly counterproductive and harmful in a large and diverse State such as Texas.”
“Federalism allows States to tailor such matters in the best interests of their communities. The heavy hand of CMS’s nationwide mandate does not. CMS’s claim of expansive authority under 42 U.S.C. §§ 1302 and 1395hh to regulate conditions of employment in the name of “health and safety” is unprecedented.”
As a result, Texas asks that “This Court should thus set aside the CMS Vaccine Mandate as unlawful agency action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, and an unconstitutional act by the federal government.”