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On the Alert

No injunction pending appeal
challenging mandatory vaccination of
health care workers.

Florida v. Dept of Health and Human Services (11th Cir 12/06/2021)
http://case.lawmemo.com/11/florida.pdf
Sent to Custom Alerts™ subscribers on 12/06/2021

The Secretary of Health and Human Services issued an interim rule that requires facilities that provide health care to Medicare and Medicaid beneficiaries to ensure that their staff, unless exempt for medical or religious reasons, are fully vaccinated against COVID-19. The State of Florida challenged the rule, and the trial court denied a preliminary injunction. The 11th Circuit (2-1) denied Florida's motion for an injunction pending appeal.

The court said: "Florida has failed to meet its extremely high burden and clearly establish its entitlement to a preliminary injunction pending appeal. *** Florida failed to demonstrate (1) a substantial likelihood that it will prevail on the merits of its appeal from the denial of a preliminary injunction; (2) it will suffer irreparable injury absent an injunction; or (3) the balance of the equities favor an injunction."

Florida failed to show a substantial likelihood that it will prevail on its claim that the Secretary lacked the statutory authority to enact the interim rule. Congress authorized the Secretary to set standards to protect the health and safety of patients. Florida argues that the interim rule should be set aside because the Secretary failed to comply with the notice-and-comment requirement. But that requirement does not apply "when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest."

Florida also failed to establish that it will face an irreparable injury. Florida's affidavits predicting new staffing shortages as a result of the vaccine mandate are "speculative" and "conclusory."

The court said: "Imposing an injunction to bar enforcement of the interim rule would harm the public interest in slowing the spread of COVID-19 and protecting the safety of Medicare and Medicaid patients and staff. And this interest is particularly compelling within the setting of the healthcare facilities at issue, where the population of patients covered by Medicare and Medicaid is more likely than the general population to experience severe complications if they contract COVID-19."

In the course of a 50 page dissent, Judge Barbara Lagoa wrote: "While Congress has authorized the Secretary of Health and Human Services general authority to issue regulations for the 'administration' of Medicare and Medicaid and the 'health and safety' of recipients, there is no dispute that there is no specific congressional authorization for the mandate. Simply put, nothing in 42 U.S.C. 1302 and 1395hh indicates that Congress intended to assign [the Centers for Medicare and Medicaid Services] sweeping authority to impose a nationwide vaccine mandate—not only on healthcare 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."

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