Florida appeals to health care COVID-19 vaccine requirement

TALAHASSEE, Fla. – Florida has appealed after a federal judge a request rejected to block a Biden administrative requirement that employees in hospitals, nursing homes and other health care providers must be vaccinated against COVID-19.

Attorney General Ashley Moody’s office on Tuesday filed a notice to refer the case to the 11th U.S. Circuit Court of Appeals. The move came after U.S. District Judge M. Casey Rodgers on Saturday refused to issue a preliminary injunction or temporary restraining order against the vaccination requirement.

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In addition to filing the appeal, Moody’s office on Tuesday asked Rodgers to issue an emergency injunction against the vaccination requirement while the Atlanta-based appeals court considers the case. State lawyers argue that the vaccination requirement, slated for December 6, would cause “irreparable damage”, including exacerbating health care staffing shortages.

“The bottom line is Florida facilities must make an impossible decision on Dec. 6: fire unvaccinated personnel or risk defying federal law and suffering the consequences,” said Tuesday’s motion for an emergency injunction. .

The Moody’s office filed the lawsuit Nov. 17, seeking an injunction or temporary restraining order against the vaccination rule, issued this month by the federal Centers for Medicare & Medicaid Services.

The rule applies to hospitals, nursing homes, and other health care providers who participate in the Medicare and Medicaid programs. The rule requires health professionals to receive at least one dose of COVID-19 vaccine by December 6 and be fully vaccinated by January 4, with limited exceptions for medical and religious reasons.

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Rodgers, who was appointed to the federal bench by former Republican President George W. Bush, wrote in Saturday’s ruling that Florida had done no “irreparable damage” to warrant a ban or temporary restraining order. In part, the state claimed the rule would affect state-run facilities, such as veterans’ nursing homes.

“In reviewing the file, the court finds not sufficient to show that irreparable damage will occur in the absence of a TRO (temporary restraining order) or injunction before December 6, 2021,” Rodgers wrote. “The affidavits (from state officials) in support of the motion contain claims about how the various agencies and institutions anticipate that they could be adversely affected by the mandate. In particular, the affidavits reflect the views of agency heads who “estimate” they “could” lose a certain percentage or number of employees, or speculate about the consequences they will face “if widespread layoffs occur.” However, such opinions, without supporting factual evidence, remain speculative and may be disregarded as persuasive.”

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In the lawsuit, Moody’s office alleges that the federal agency, known as CMS, exceeded its legal authority in issuing the requirement and failed to follow proper procedures, such as consulting with states and providing notices. Also, the lawsuit argues that the requirement is “arbitrary and erratic.” Much of the lawsuit is based on alleged violations of the Federal Administrative Procedure Act.

As usual, the appeal filed Tuesday does not contain detailed arguments that the state will advance to convince the appeals court to reverse Rodgers’ decision made on Saturday.

But by asking Rodgers to issue an emergency warrant while the appeal is underway, the state argued that the vaccination requirement is already doing irreparable damage. The motion cited a law passed at a special legislative session last week that aims to prevent workers from being vaccinated against COVID-19.

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The motion said the federal “mandate is intended to pre-empt state laws that prohibit employers from requiring employees to submit to vaccination, and that Florida officials must violate such state laws to comply with the mandate.”

It also said damages will occur “by December 6, when facilities, including facilities owned and operated by Florida, must decide between complying with Florida law or complying with its mandate,” the motion said. . “And in reality, they will happen even earlier because Florida facilities need to make sure they are in compliance by December 6.”

Because it only dealt with the state’s request for a preliminary injunction or temporary restraining order, Rodgers’ ruling on Saturday did not end the lawsuit. Also, at least one other challenge has been filed by states against the health care vaccination requirement. Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire gathered on Nov. 10 to file a lawsuit in federal court in Missouri.

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The vaccination requirement will affect hundreds of private hospitals, nursing homes and other providers in Florida, in addition to government agencies that provide health services. State and industry officials have repeatedly raised concerns about staff shortages.

Although the federal government had not filed arguments in the Florida case Wednesday morning, it filed a 66-page document in Missouri on Monday citing evidence that vaccinated people in healthcare facilities were less likely to become infected with COVID-19 and pass it on to others.

“The Secretary of (The Department of) Health and Human Services (including CMS) reviewed this evidence and concluded that action was urgently needed to protect Medicare and Medicaid beneficiaries from the possibility of becoming infected with the virus while receiving care. in facilities funded by these programs,” attorneys for the United States Department of Justice wrote. “Congress has given the secretary a legal responsibility to ensure patient health and safety is protected in these federally funded facilities. He has therefore issued a rule to do so. ”

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