Attorney General Knudsen leading fight to block CMS mandate before new deadline

HELENA – Attorney General Austin Knudsen continues to lead the fight to protect Montana healthcare workers and their patients and employers from the Biden administration’s COVID-19 vaccination mandate. In a new filing today, Attorney General Knudsen and 15 other attorneys general ask a federal judge to once again block the federal government from enforcing the mandate in their respective states.

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.

“President Biden’s scheme to federalize COVID-19 vaccination policy and force it on Americans who have chosen not to get the vaccine has hit the skids. Four separate mandates have either been struck down or are currently blocked by federal courts,” Attorney General Knudsen said. “All that remains is the mandate for healthcare workers, and the emergence of the Omicron variant that is milder and resistant to vaccines has weakened the federal government’s position even more. Healthcare systems in rural states like Montana can’t afford to lose more workers, or patients will suffer.” 

The filing is the latest in the ongoing case against President Biden’s vaccine mandate for health care workers. It seeks to stop the federal government from enforcing the mandate in Montana 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, 41 percent of nursing home and long-term care facilities in Montana are already facing a shortage of nurses and/or aides. Current numbers around the nation represent the worst staffing shortages since the government began collecting data 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 undoubtedly 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 [Montana],” 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, emerging 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 imposes 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. It is being led by Montana, Arizona, and Louisiana. The other states joining are Alabama, Georgia, Idaho, Indiana, Kentucky, Mississippi, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia, and West Virginia.

Click here to read the full amended complaint.