Florida judge: mandate to vaccinate healthcare workers against COVID-19 may remain in force for now

A federal judge in Florida will not suspend a Medicare and Medicaid Services mandate for COVID-19 vaccinations for healthcare facilities pending trial, the first time a judge has weighed a CMS claim.

Under an interim final rule, released in early November, CMS requires all employees at Medicare and Medicaid healthcare facilities to be fully vaccinated against COVID-19 by January 4th, with their first vaccine no later than December 6th. and religious exceptions are allowed under the rule, but institutions that do not comply with the rule may end up being excluded from Medicare and Medicaid.

Florida filed a lawsuit against CMS on Wednesday, asking the District Court for the Northern District of Florida to immediately obstruct the agency’s mandate.

But the state’s argument does not prove that it will suffer irreparable damage if the mandate is not suspended until December 6, Judge M. Casey Rogers. ruled on saturday

Government executives predicted in affidavits attached to the lawsuit that they would lose staff due to the mandate, but this is just speculation, Rogers wrote. The data shows COVID-19 vaccination requirements have not yet led to massive cessation of smoking by employees.

Rogers said the mandate could not be temporarily suspended because agencies and businesses would lose federal funding if they refused to comply. Florida also fails to prove that the mandate will jeopardize its sovereignty.

“Economic damage such as loss of funding is not irreparable. Damage is “irreparable” only if it cannot be repaired by money, “the decision says.

While Rogers made the first legal decision on CMS’s mandate, another judge overturned the OSHA’s claim on November 12. The OSHA requirement dictates that employees in businesses with 100 or more employees get vaccinated by January. 4 or receive weekly COVID-19 testing. OSHA has suspended compliance with the requirement.

Lawyers in the field were not surprised to see that the CMS’s mandate is being dealt with in courts in different ways.

“Anyone who is covered [CMS’ mandate] is covered because they have chosen this route and decided to abide by the conditions of participation. So I think it will be a little harder for them to show that the CMS’s mandate is now too onerous and burdensome, ”said A. Kevin Troutman, partner at Fisher Phillips.

Rogers can still decide to terminate the mandate after the trial is over.

“The court did not examine whether there was a substantive likelihood of success, so this is still controversial,” said Amanda Brown, attorney for Reed Smith.

However, Erin McLaughlin, a lawyer for Buchanan Ingersoll & Rooney, said the judge would likely find irreparable damage if she thought the state’s arguments would ultimately succeed.

“I really think there is some idea of ​​how the court will ultimately decide,” she said.

Florida’s lawsuit follows earlier mandate challenges, including one brought by Missouri on behalf of nine other states and another by Texas. The judges in these cases are not required to follow Rogers’ precedent for waiving the prior termination of the rule, but they may hesitate to go against the decision, Brown said.

“This court probably made a decision early on how it would rule and wanted to be the first to officially confirm this,” Brown said, adding that it would be difficult for states to establish irreparable damage before the mandate actually passed. into effect.

Several OSHA lawsuits were consolidated into one lawsuit, which was referred to the US Sixth Circuit Court of Appeals. There was no such discussion about merging issues with the CMS mandate, McLaughlin said, but part of that could be due to so many states joining Missouri’s lawsuit against CMS, essentially merging their cases from the start.

federal government replied on Monday to answer a call in Missouri, reiterating that institutions are choosing to enroll in Medicare and Medicaid and the Department of Health and Human Services has the power to create new conditions for enrollment.

Federal officials also argue that the court has no jurisdiction over the Missouri and partner states’ claim because most Medicare questions must first be referred to HHS for a special review process.

Lawyers for HHS and CMS also said in their response that terminating the nationwide mandate would make the Florida court ruling meaningless.

“Moreover, more than half of the states do not dispute the vaccination rule. There is no reason why the plaintiffs’ disagreement with him should govern the rest of the country, ”the response says.

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