MT AG Knudsen leading 2nd lawsuit challenging health-care worker vaccine mandate

Says it will worsen health-care worker shortage
St. Peter's Health
Posted at 11:39 AM, Nov 16, 2021
and last updated 2021-11-17 00:35:02-05

HELENA — Montana and 11 other states are suing to stop the Biden administration’s rule requiring most hospitals and other health-care facilities to have their employees vaccinated against Covid-19 by January, calling it an illegal overreach of federal power.

Montana Attorney General Austin Knudsen, who said he’s leading the effort, said the Nov. 5 rule is not only unconstitutional, but also will exacerbate the shortage of health-care workers, by leading many of them to quit or be fired because they won’t get vaccinated.

“Health-care workers should be allowed to make their own decisions about their health – not President Biden,” Knudsen said. “If his unprecedented overreach is not stopped, health-care workers will lose their jobs, threatening access to medical care that Montanans need.”

The lawsuit also asked the court to stop the rule from taking effect while its legality is determined.

The rule says any hospital or health-care facility that gets funds from Medicare or Medicaid – the federal health-insurance programs that cover the poor and the elderly – must require all workers to be fully vaccinated against COVID-19 by Jan. 4 and get a first shot by Dec. 5.

Montana Attorney General Austin Knudsen (April 2021)
Montana Attorney General Austin Knudsen (April 2021)

It can apply to private hospitals, nursing homes, clinics, state hospitals and other facilities, mental-health clinics and hospice care, among others. Medical or religious exemptions to the mandate are allowed in some circumstances.

If any facility doesn’t comply, they risk losing their Medicare and Medicaid funding, which covers tens of thousands of people in Montana.

The Montana Hospital Association said Tuesday that Montana hospitals are working toward complying with the federal rule – despite a state law that bars employers from requiring workers to be vaccinated.

The suit filed Monday is the second such lawsuit challenging the rule from the U.S. Center for Medicare and Medicaid Services (CMS), which oversees the two programs. Ten other states filed a similar action last week in federal court in Missouri.

The states joining Montana in the lawsuit are Utah, South Carolina, Louisiana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma and West Virginia.

Knudsen also joined a separate lawsuit earlier this month to block a Biden administration rule that requires employers with 100 or more workers to require their workforce to be vaccinated against COVID-19. That rule already has been put on hold by a federal appeals court.

The lawsuit filed Monday said CMS estimates that 2.4 million out of 10 million health-care workers at facilities that take Medicare or Medicaid money are not vaccinated against COVID-19.

The suit said the CMS vaccine rule violates federal law and the Constitution in several ways. For example, CMS did not seek any comment or consult with state agencies, and is creating an unconstitutional condition for the receipt of federal medical funds, the suit said.

It also said the rule violates the basic goal of Medicare and Medicaid, which is to focus on patient care and access to health care, by creating a requirement that will lead to health-care workers losing their jobs.

“By forcing employees to choose `between their job and their jab,’ the mandate completely ignores the unprecedented labor shortage prevailing in the health-care sector and patient well-being, in favor of the president’s ambition to increase societal vaccination rates,” the suit said.

Knudsen’s office said the mandate will hit Montana’s health-care system particularly hard, because many nursing homes already are facing staff shortages, and more than one-third of their workers have chosen not to be vaccinated.