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Montana AG joins challenge to federal vax mandates for health care workers

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Virus Outbreak-Vaccine Mandates

A syringe is prepared with the Pfizer COVID-19 vaccine Sept. 14 at a clinic at the Reading Area Community College in Reading, Pennsylvania.

For the third time in as many weeks, Montana’s attorney general has joined with other Republican-led states to challenge a rule from the Biden administration aimed at boosting the nation’s stagnant rate of vaccination against COVID-19, calling it an "unprecedented overreach." 

The state is one of a dozen that on Monday sued the federal Department of Health and Human Services and the Centers for Medicare and Medicaid (CMS) to block a rule requiring hospitals and other medical providers to require their employees be vaccinated in order to receive federal reimbursements.

The complaint claims the regulation exceeds CMS’s statutory authority, the Social Security Act, the Congressional Review Act and other federal laws. It also alleges that President Joe Biden's administration violated laws requiring public notice and opportunities to comment on the rule. Like the two other lawsuits challenging federal vaccine requirements, it alleges the administration has encroached on states’ rights reserved under the 10th Amendment.

“The federal mandates are not about health – they are about forced compliance,” Attorney General Austin Knudsen stated in a press release announcing the lawsuit Monday night. “Health care workers should be allowed to make their own decisions about their health – not President Biden. If his unprecedented overreach is not stopped, health care workers will lose their jobs threatening access to medical care that Montanans need.”

Noting the ongoing shortage of health care workers across the country — including in Montana — the states argue that forcing those employees to be vaccinated will exacerbate the problem by pushing them out of the industry.

The CMS rule was published last month after being announced by Biden in September. It requires health care providers to vaccinate employees by Jan. 4 or forfeit federal reimbursements for care under Medicare and Medicaid. Exemptions from the vaccine requirement due to religious or medical reasons are recognized under the rule. Other workers are required to receive their first vaccine dose by Dec. 6.

Filed in U.S. District Court in Western Louisiana, the complaint also names the top officials at HHS and CMS as defendants. Louisiana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah and West Virginia are the other plaintiffs.

The complaint asks the court to strike down the regulation, while a separate motion filed Monday asks that the rule be temporarily blocked until the court reaches a final decision.

At least one other challenge to the CMS rule is already working its way through the courts, filed last week by a coalition of states led by Missouri.

In late October, Knudsen signed onto the lawsuit challenging Biden’s vaccine mandate for employees of federal contractors. Ten states are seeking a preliminary injunction from a federal judge in Eastern Missouri District Court to block the rule, though no order had been issued as of Tuesday morning.

And last week, Montana joined 11 other states in asking a federal appeals court to throw out another part of the president’s package of vaccine requirements, under which the Occupational Safety and Health Administration will require employees of all businesses with 100 or more workers to be fully vaccinated by Jan. 4 or face weekly COVID testing. It exempts employees who don’t work on-site or with others.

While no order has been issued in that case, filed in the Missouri-based Eighth Circuit Court of Appeals, a panel of three judges in the Fifth Circuit Court of Appeals unanimously granted a separate motion to temporarily block the rule last week. The multiple appeals court challenges are expected to be consolidated and eventually decided by the Supreme Court, the New York Times reported last week.

The legal wrangling puts many Montana hospitals and other businesses in a bind. A new state law passed by Republican lawmakers and signed into law by Gov. Greg Gianforte this year, House Bill 702, forbids most private businesses and other employers from requiring their staff to be vaccinated. Aside from carve-outs in the state law for schools and long-term care facilities, it conflicts with the new federal requirements.

Knudsen hasn’t offered any direct guidance to businesses on how to navigate that conflict, although he noted previously that the requirement for federal contractors only applies to new or renewed contracts.

Gianforte, a Republican, has suggested that the state law shields Montana businesses from the federal requirements, though a law professor at the University of Montana said that interpretation runs afoul of the U.S. Constitution’s Supremacy Clause.

Guidance issued by federal agencies has maintained that the new rules will be effective regardless of local or state requirements to the contrary.

Montana’s overall rate of full vaccinations against the coronavirus, now at 52%, has remained lower than most other states. Nationwide, nearly 60% of all Americans are fully vaccinated. The state’s daily caseload has fallen over the past month, after weeks in which Montana was one of the nation’s top COVID hotspots. It remained 11th in the country for new cases per capita as of Tuesday, according to data compiled by the New York Times.

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