Revamped challenge to vaccine policy still has no legs, experts say

Several states' revamped challenge to the federal COVID-19 vaccine mandate for healthcare workers likely won't make a difference in the policy's fate, but it raises new questions that could catch a judge's eye, lawyers say.

Louisiana is leading 15 other states in an amended complaint filed last week against the COVID-19 vaccine mandate for healthcare workers at Medicare and Medicaid-certified facilities. The states argue in a motion to the United States District Court for the Western District of Louisiana that the Centers for Medicare and Medicaid Services improperly added state surveyors to the list of staff covered by the mandate, and say omicron's ability to spread despite vaccines makes the policy meaningless.

The U.S. Supreme Court ruled last month that CMS' mandate could continue while an appeal at the Fifth Circuit court is pending. The decision followed multiple challenges from states that questioned CMS' authority to impose the broad requirement and said the policy would exacerbate healthcare staffing shortages. Staff have not been found to quit en masse in the face of COVID-19 vaccine mandates so far.

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Healthcare employees in most states that originally challenged the mandate now need to get their first dose of the vaccine by Feb. 14. As that deadline looms, the states are trying once more to get the mandate blocked.

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Much of the 69-page complaint argues that CMS went beyond its constitutional authority in creating the mandate and infringed on states' powers, an argument the U.S. Supreme Court has already found unreasonable.

But the states say circumstances have changed since CMS wrote the policy. The mandate came out when delta dominated COVID-19 cases in the U.S., and CMS said its severity warranted the requirement. Now, omicron accounts for more than 99% of all COVID-19 cases, and, per the Centers for Disease Control and Prevention, it's both more transmissible and generally less severe than earlier strains of the virus. A two-dose course of COVID-19 vaccines doesn't seem to offer enough protection against catching omicron.

"Simply put, the situation has changed. And that reveals a fundamental, structural defect in the rule—its one-size-fits-all approach doesn't account for developing data and circumstances," the states argue in their complaint.

Interim final rules like the one used to issue the mandate expire after three years unless CMS takes additional action. But the states ask a logical question about whether circumstances are already different enough to prompt a change, said Kevin Troutman, a partner at Fisher Phillips.

He thinks the case will be an uphill climb for states, since the Supreme Court has already looked at the basics of the issue. But if states can prove that the mandate's harm now outweighs its benefit against omicron, the courts might be more receptive, he said.

"They've come up with a pretty interesting angle, and some of the arguments that they're making in this amended complaint, the argument that circumstances have changed, it's hard to ignore," Troutman said.

While COVID-19 cases continue to fall across the country after a peak in early January, national positivity levels remain higher than they have been at most other points in the pandemic, according to CDC data.

Additionally, the states' revised challenge takes issue with the fact that CMS newly-required state surveyors overseeing Medicare and Medicaid-participating facilities to be vaccinated against COVID-19 in a Jan. 25 guidance document.

"Apparently emboldened by the Supreme Court's preliminary decision, the federal government has extended its lone, remaining mandate to employees of the State," the complaint reads.

CMS essentially adding a new class of people to its mandate after the fact could interest judges, said James Hodge, law professor and director of the Center for Public Health Law and Policy at Arizona State University.

"Now that sounds novel, and that sounds unique. That sounds like the type of new claim that even the Supreme Court would say, yeah, wait a minute, we don't allow that sort of thing," Hodge said.

But Hodge believes this decision by CMS will end up being irrelevant because the mandate covers other state employees, like those working at state-run hospitals.

Additionally, although the states raise a new angle, the Supreme Court's preliminary ruling on the mandate raises the bar for arguments against it, said Susan Feigin Harris, a partner at Norton Rose Fulbright.

"I frankly think, legally, it's not going to pass muster. But...we know that there's a political component to these kinds of challenges," she said.

Federal officials wrote in their response brief the Supreme Court already took care of this case. The high court was well aware of omicron when deciding to allow the mandate to continue, the officials wrote. Furthermore, the Jan. 25 guidance only sets out expectations, and has no enforcement mechanism for making sure surveyors are vaccinated.