SUBLETTE COUNTY – The State of Wyoming is further fighting the Biden administration and its vaccine requirements with a third lawsuit, joining a group of states that have filed a suit to prevent enforcing the mandate on health-care workers.
This is the third lawsuit Wyoming has joined in as many weeks against President Joe Biden and his executive orders that require workers in different industries to get vaccinated. Previously, Wyoming has joined suits opposing requiring federal contractors and one against the Occupational Safety and Health Administration’s order requiring vaccinations or weekly testing for businesses with over 100 employees. The latter of those orders was recently halted by an order of state in the U.S. Court of Appeals for the 5th Circuit in Louisiana, which moved the deadline back to Jan. 4 for businesses to require vaccinations or weekly testing.
This latest order pertaining to health-care workers does not offer the option of weekly testing and face coverings in lieu of vaccinations.
Gov. Mark Gordon made the announcement last week, saying it’s the latest step the state can take in preventing government overreach.
“Wyoming continues to face a significant shortage of health-care workers and this federal mandate will only exacerbate our health-care staffing issues,” Gordon said. “This administration needs to understand that overreaching policies that force employees to choose between vaccination and termination negatively impact Wyoming communities, rural health care and residents of skilled nursing facilities.”
Officially, the latest suit is one that 11 states filed against the Centers for Medicare and Medicaid Services. The lawsuit itself mentions the order “imposes an unprecedented federal vaccine mandate on nearly every full-time employee, part-time employee, volunteer and contractor working at a wide range of health-care facilities receiving Medicaid or Medicare funding.”
The lawsuit goes further by claiming the vaccine requirement threatens to worsen the health-care worker shortage, especially in rural communities. The lawsuit claims that the CMS foreshadowed impending disaster in the health-care industry.
“By ignoring the facts on the ground and unreasonably dismissing concerns about workforce shortages, the CMS vaccine mandate jeopardizes the health-care interests of rural Americans,” the court filing reads.
Legally, the lawsuit incorporates nine counts of procedural and substantive issues. A release from Gov. Gordon’s office stated among them are violations of the 10th Amendment and federalism – “principles the State of Wyoming always seeks to guard against.”
The Centers for Disease Control and Prevention has long listed recommended vaccinations and hospitals across the country employee health-care workers with their own vaccine requirements, as health-care workers are at a high risk of exposure to serious and deadly illnesses. The list of recommended vaccines include shots to prevent: Hepatitis B, influenza, MMR (measles, mups and rubella), chickenpox, TDAP (tetanus, diphtheria, pertussis) and meningococcal.
The current administration said about 40 percent of all hospitals already required vaccinations and federal data show about 73 percent of nursing home workers are fully vaccinated. A recent report from the AARP showed Wyoming’s 8.49 COVID-19 cases per 100 nursing home residents is the highest in the country, by far. Montana registered the second-highest rate with 6.94 cases per 100 residents, according to AARP data. Wyoming also registered the second-highest rate of nursing home deaths due to COVID-19 from Sept. 20 through Oct. 17 with 1.53 deaths per 100 residents.
Federal data show 60.7 percent of nursing home staff in Wyoming are vaccinated, the seventh-lowest rate in the country.
Legally, the lawsuit faces an uphill battle. The CMS holds the ability to establish rules governing the organizations it pays to deliver care. Some legal experts, like Katrina A. Pagonis, who specializes in regulatory issues, said the “CMS has very broad authority to regulate Medicare-certified providers.”
The Biden administration invoked the Supremacy Clause in the U.S. Constitution to pre-empt state and local laws when issuing its order pertaining to health-care workers.
For context, the CMS’s requirement for vaccinations comes with the stretching of the American health-care system as the Delta variant’s spread throughout the country once again tested limitations. Hospital beds once again became a premium, ventilators were once again in short supply and staffing against an increasing number of hospitalized patients was stretched thin.
Chiquita Brooks-LaSure, the administrator for CMS, acknowledged staffing concerns in a previous interview. That, however, would be offset by health-care workers who are required to quarantine or isolate in the event they contracted COVID-19.
Brooks-LaSure also said the agency will work with agencies on educating providers and working on compliance, as it cannot discontinue Medicare financing for providers that do not comply.