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State ratchets up appeal over the federal vaccine mandate for health care workers

 bottle of covid-19 vaccine, gavel and syringe on wooden background.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

A 28-page petition asks the full 11th U.S. Circuit Court of Appeals to issue an injunction that at least would put the rule on hold while an underlying appeal is decided.

Pointing to the “remarkable significance” of the case, Florida Attorney General Ashley Moody on Thursday asked a full federal appeals court to at least temporarily block a Biden administration rule that would require health care workers to be vaccinated against COVID-19.

The request came after Florida suffered blows in its fight against the vaccination mandate. Pensacola-based U.S. District Judge Casey Rodgers last month rejected the state’s request for a preliminary injunction against the rule, and a panel of the 11th U.S. Circuit Court of Appeals also refused to halt it.

Lawyers in Moody’s office filed a 28-page petition Thursday asking the full Atlanta-based appellate court to issue an injunction that at least would put the rule on hold while an underlying appeal is decided — a move known as seeking an “injunction pending appeal.”

The petition contended that the rule violates federal laws and would worsen staffing problems at health care facilities, including state-run facilities such as veterans’ nursing homes.

“A vaccine mandate threatens to exacerbate these grim circumstances,” the petition said. “Officials at state-run health care facilities expect that many health care workers would resign rather than vaccinate.”

Florida is one of numerous states that have challenged the vaccination rule, which was issued in early November by the federal Centers for Medicare & Medicaid Services.

A federal district judge in Louisiana issued a nationwide injunction against the rule, but the 5th U.S. Circuit Court of Appeals on Wednesday said that decision went too far. The New Orleans-based appellate court scaled back the injunction to apply only to 14 states that filed the case in Louisiana.

With the nationwide injunction erased, lawyers in Moody’s office wrote Thursday that Florida is no longer “protected” against the vaccination rule and that the full 11th Circuit should quickly take up the issue in what is known as an “en banc” proceeding.

“Florida’s health care workers now face the immediate prospect of forced vaccination,” the petition said. “Florida therefore petitions for the en banc court’s expeditious intervention.”

The vaccination requirement would apply to workers at hospitals, nursing homes and other health care providers that participate in the Medicare and Medicaid programs. The requirement was initially scheduled to take effect Dec. 6, but the Biden administration suspended it because of injunctions that had been issued in the Louisiana case and a Missouri case.

In the Florida case, an 11th Circuit panel last week issued a 2-1 opinion rejecting the state’s request for an injunction during the underlying appeal of Rodgers’ decision. The majority said, in part, that Florida had not shown a “substantial likelihood” that it would prevail in the underlying appeal and did not show that it would suffer “irreparable harm” without an injunction.

Also, the panel majority, made up of Judges Robin Rosenbaum and Jill Pryor, pointed to justification for the rule as the nation continues struggling with the pandemic. The opinion said U.S. Department of Health and Human Services Secretary Xavier Becerra, who oversees the Centers for Medicare & Medicaid Services, considered issues such as whether the vaccination requirement would cause health care workers to leave jobs.

“Even though many health care workers have been vaccinated against COVID-19, the secretary found that vaccination rates remain too low at many health care facilities,” the opinion said. “Unvaccinated staff continue to pose a significant threat to patients because the virus that causes COVID-19 is highly transmissible and dangerous. The secretary cited data reflecting that the virus spreads readily among health care workers and from health care workers to patients and that such spread is more likely when health care workers are unvaccinated.”

But Judge Barbara Lagoa, a former Florida Supreme Court justice, wrote a dissent contending, in part, that the Centers for Medicare & Medicaid Services overstepped its authority with the rule.

“CMS (the agency) has never before enforced a vaccination mandate, and CMS cannot point to clear statutory authorization from Congress for the mandate,” Lagoa wrote. “Simply put, nothing in (federal laws) indicates that Congress intended to assign CMS sweeping authority to impose a nationwide vaccine mandate — not only on health care workers providing direct patient care, but on all facility administrators and employees, trainees, students, volunteers and third-party contractors who provide any care, treatment, or other services for the facilities falling under the mandate.”

Jim Saunders is the Executive Editor of The News Service Of Florida.