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Fitch files lawsuit to stop the third of Biden’s “overreaching” vaccine mandates

Attorney General Lynn Fitch has joined a coalition of twelve states in filing a lawsuit against the third of President Biden’s vastly overreaching vaccine mandates. The mandate published by the Centers for Medicare and Medicaid Services (CMS) on November 5, 2021, would impact approximately 17 million healthcare workers, forcing them to be vaccinated by January 4, 2022, or find new employment.

“For nearly two years, healthcare workers have cared for the sick and dying at the height of the COVID-19 pandemic,” said Attorney General Lynn Fitch. “They have gone above and beyond the call of duty, sacrificing time with their families and their own health, and enduring enormous stress and long hours. Now, for no other reason than the President’s desire to check the box on universal vaccination, these heroes are being forced to choose between vaccination and their jobs. We have trusted them with our health for two years; we owe them the respect that they know how to best care for their own now.”

The CMS rule applies to every person, including employees, contractors, trainees, students, and volunteers, regardless of whether they have any patient-care responsibilities or contact with patients. The rule governs 21 types of Medicare- and Medicaid-certified providers and suppliers at the following types of facilities:

  • Ambulatory Surgical Centers
  • Hospices
  • Psychiatric residential treatment facilities
  • Programs of All-Inclusive Care for the Elderly
  • Hospitals
  • Long-Term Care Facilities, including Skilled Nursing Facilities and Nursing Facilities
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities
  • Home Health Agencies
  • Comprehensive Outpatient Rehabilitation Facilities
  • Critical Access Hospitals
  • Clinics
  • Rehabilitation Agencies
  • Public Health Agencies as providers of Outpatient Physical Therapy and Speech-Language Pathology Services
  • Community Mental Health Centers
  • Home Infusion Therapy suppliers
  • Rural Health Clinics
  • Federally Qualified Health Centers
  • End-Stage Renal Disease Facilities

CMS acknowledges that roughly 2.4 million healthcare workers impacted by this mandate are currently unvaccinated, and also acknowledges that there are currently “endemic staff shortages for all categories of employees at almost all kinds of health care providers and suppliers.” But its rule offers no testing and masking alternatives to vaccination. Workers must vaccinate or lose their job.

“It is ironic that in attempting to justify its failure to meet even the most fundamental procedural requirements for federal rule-making CMS claims urgency is required because ‘the 2021-2022 influenza season’ will soon begin,” continued Attorney General Fitch, “yet CMS does not mandate vaccination for the flu. In fact, in the entire history of the Medicare and Medicaid programs, this is the first ever mandatory vaccination. It is one more piece of evidence that the President’s real urgency here has nothing to do with health outcomes, but is just a remedy for his lack of patience.”

The lawsuit contends that this mandate exceeds CMS’ statutory authority; violates the Social Security Act’s prohibition on regulations that control the selection and tenure of healthcare workers; is arbitrary and capricious; violates the Spending Clause, the Anti-Commandeering Doctrine, and the Tenth Amendment; and ignores basic procedural requirement imposed by Congress, including notice and comment under the Administrative Procedure Act, publication and review under the Congressional Review Act, and consultation and regulatory impact analysis under the Social Security Act.

Attorney General Fitch filed this suit in the United States District Court for the Western District of Louisiana along with the Attorneys General for Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Montana, Oklahoma, South Carolina, Utah, and West Virginia.

This is the third lawsuit filed by Attorney General Fitch challenging Biden’s vaccine mandates. Her lawsuit seeking an injunction against the federal contractor mandate, impacting one-fifth of the American workforce, is pending in the U.S. District Court. As a result of her lawsuit and others at the Fifth Circuit Court of Appeals, the mandate impacting all private employers with 100 or more employees, requiring vaccination of roughly 84 million Americans, is currently stayed.17 million healthcare heroes being forced to vaccinate or lose their jobs

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