A federal judge in Florida won't pause the Centers for Medicare and Medicaid Services' COVID-19 vaccine mandate for healthcare facilities before litigation, marking the first time a judge has weighed in on the CMS requirement.
CMS, in an interim final rule issued at the beginning of November, required all employees at Medicare- and Medicaid-participating healthcare facilities get fully vaccinated against COVID-19 by Jan. 4, with their first shot on or before Dec. 6. Medical and religious exemptions are allowed under the rule, but facilities that don't comply could eventually be kicked out of the Medicare and Medicaid programs.
Florida sued CMS on Wednesday, asking the U.S. District Court of the Northern District of Florida to immediately prevent the agency from enforcing the mandate.
But the state's argument didn't prove that it will suffer irreparable harm if the mandate isn't halted before Dec. 6, Judge M. Casey Rodgers ruled on Saturday.
State agency heads predicted in affidavits attached to the lawsuit that they'd lose staff because of the mandate, but that's just speculation, Rodgers wrote. Data shows COVID-19 vaccine mandates have not led staff to quit en masse so far.
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Rodgers said the mandate can't be temporarily halted because agencies and businesses would lose federal funding losses if they refuse to comply. Florida also doesn't prove the mandate will compromise its sovereignty.
"Economic loss such as the loss of funding is not irreparable. An injury is 'irreparable' only if it cannot be undone through monetary remedies," the decision reads.
While Rodgers made the first legal decision on CMS' mandate, a different judge halted a related requirement from the Occupational Safety and Health Administration on Nov. 12. The OSHA requirement directs employees at businesses with 100 or more staff to either get vaccinated by Jan. 4 or undergo weekly COVID-19 testing. OSHA has now paused implementation of the requirement.
Lawyers in the space weren't surprised to see the CMS mandate handled differently in the courts.
"Anybody who's covered by [CMS' mandate] is covered because they chose to take that route and they chose to comply with the conditions of participation. So I think it's going to be a little harder for them to show that the CMS mandate now is too onerous and too burdensome," said A. Kevin Troutman, a partner at Fisher Phillips.
Rodgers can still decide to stop the mandate after the litigation process.
"The court didn't get into whether there was a likelihood of success on the merits, so that's still very up for debate," said Amanda Brown, a lawyer at Reed Smith.
However, Erin McLaughlin, a lawyer with Buchanan Ingersoll & Rooney, said the judge likely would have found irreparable harm if she thought the state's argument would ultimately be successful.
"I do think there's a glimpse in there as to ultimately how the court will decide," she said.
Florida's lawsuit followed earlier challenges to the mandate, including one led by Missouri on behalf of nine other states and another from Texas. The judges on those cases don't have to follow Rodgers' precedent in denying a preliminary halt of the rule, but they may be hesitant to go against the ruling, Brown said.
"This court probably had its mind made up pretty early on how it was gonna rule and wanted to be the first on record with it," Brown said, adding that it will be hard for states to establish irreparable harm before the mandate actually goes into effect.
Several OSHA challenges were combined into one lawsuit now in front of the Sixth U.S. Circuit Court of Appeals. There hasn't been the same discussion around combining challenges to the CMS mandate, but that could partially be because so many states joined Missouri's lawsuit against CMS, essentially combining their cases from the start, McLaughlin said.
The federal government responded to the Missouri challenge on Monday, reiterating that facilities choose to participate in Medicare and Medicaid and the Health and Human Services Department has the authority to create new conditions of participation in the programs.
Federal officials also argue the court doesn't have jurisdiction over Missouri and its partner states' claim because most questions about Medicare statute must first be brought to HHS for a special review process.
Lawyers for HHS and CMS also said in their response that a nationwide stoppage of the mandate would make the Florida court's decision meaningless.
"Moreover, more than half of the states are not challenging the vaccination rule. There is no reason why the plaintiffs' disagreements with it should govern the rest of the country," the response says.