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November 19, 2021

Health Law Weekly

More States Sue to Block CMS Vaccination Requirement for Health Care Workers

  • November 19, 2021

A number of additional states are suing to block an emergency regulation issued by the Centers for Medicare & Medicaid Services (CMS) requiring an estimated 17 million health care workers in hospitals and other facilities and settings that participate in Medicare and Medicaid to be vaccinated for COVID-19.

In one lawsuit, filed in the U.S. District Court for the Western District of Louisiana, 12 states argue CMS exceeded its authority in issuing the interim final rule (86 Fed. Reg. 61555). According to the states, the vaccination requirement will exacerbate health care workforce shortages, particularly in rural areas.

“By forcing a significant number of healthcare workers to take the shot(s) or exit the Medicare and Medicaid workforce, CMS’s Vaccine Mandate harms access to (and thus quality of) patient care. This ‘one-size-fits-all sledgehammer’ expressly undermines the Social Security Act’s singular focus on providing access to care,” according to the complaint, which was filed by the attorneys general of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, and West Virginia.

The states allege that CMS violated the Administrative Procedure Act in promulgating the rule and that the nationwide vaccine requirement for health care workers is unconstitutional.

A second lawsuit, filed November 15 by the state of Texas, makes similar claims.

The CMS interim final 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,” according to the complaint, which was filed in the U.S. District Court for the Northern District of Texas.

“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,” the lawsuit contends.

The two lawsuits are in addition to the one filed last week by ten other states (Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire).

Under the interim final rule, health care providers must establish policies to ensure all eligible staff receive the first dose of a COVID-19 vaccine before providing any care, treatment, or other services by December 5, 2021. By January 4, 2022, all eligible workers must have received the necessary doses to be fully vaccinated. 


  • Coronavirus Pandemic