Without a single win yet in his legal battles with the Biden administration, Arizona Attorney General Mark Brnovich has opened up a new front.
In Louisiana.
Brnovich, hoping to be Arizona’s Republican nominee for U.S. Senate, is co-leading a group of 11 other Republican attorneys general in a new lawsuit.
They’re trying to get a federal judge in Louisiana to void a mandate by the Centers for Medicare and Medicaid Services that 17 million health-care workers employed at facilities getting federal dollars be vaccinated against COVID-19. The lawsuit, filed in federal court in Monroe, La., details Brnovich’s argument that the mandate exceeds the agency’s authority.
But in some ways the latest litigation is just a new version of lawsuits he already had filed challenging other actions by the Democratic president’s administration. Brnovich acknowledged as much in the latest lawsuit, decrying the three separate vaccine mandates that “as the president himself has confirmed, increase societal vaccination rates.’’
“There’s just one problem: no statute authorizes the federal executive to mandate vaccines to increase societal immunity,’’ the lawsuit states.
“The administration’s solution? Use statutory schemes never before interpreted to allow federal vaccine mandates to shoehorn the president’s goals into the fabric of American society,’’ it continues.
It cites the Occupational Safety and Health Administration’s bid to require vaccines or testing of workers at large companies, as well as President Biden’s executive order mandating vaccination of federal employees and workers at entities with federal contracts.
Brnovich has sued over both.
In the first case, a federal appeals court put the OSHA directive on hold — but not because of the lawsuit filed by Brnovich. In the second, a federal judge in Phoenix rejected his attempt to prevent the mandate from taking effect as scheduled.
The new lawsuit uses many of the same arguments.
“The Biden administration is playing statutory shell games with the courts, straining to justify an unjustifiable and unprecedented attempt to federalize public health policy and diminish the sovereign states’ constitutional powers,’’ it says.
In August, Biden announced he was ordering that those working in nursing homes accepting Medicare and Medicaid patients be vaccinated. The bigger move came on Sept. 9 when he extended that to all health-care facilities participating in either program.
“If you’re seeking care at a health facility, you should be able to know that the people treating you are vaccinated,’’ Biden said. “Simple, straightforward, period.’’
Brnovich, however, is arguing to the federal judge in Louisiana that the requirement will have the reverse effect.
“The vaccine mandate causes grave danger to the vulnerable persons whom Medicare and Medicaid were designed to protect — the poor, children, sick, and the elderly — by forcing the (job) termination of millions of essential ‘healthcare heroes,’ ‘’ the lawsuit states. He said that’s because employees who don’t want to get vaccinated will quit, “decimating those covered facilities’ ability to provide critical healthcare services and possibly forcing them to exit from the Medicaid and Medicare programs or forcing their closure altogether.’’
CMS, in its announcement, acknowledged the rule “may create some short-term disruption of current staffing levels for some providers or supplies in some places.’’ But the agency said “there is no reason to think that this will be a net minus even in the short term.’’
Brnovich said that claim is not based in reality.
“It cites no evidence that — in the current climate of long-running, wide-ranging, and persistent healthcare staffing shortages — new recruitment will magically replenish staffing shortages caused by those who will leave their jobs rather than submit to federally coerced vaccinations,’’ the lawsuit says.
Brnovich, in a separate press release, said he has data to back that up.
He cited an AARP study, updated a week ago, that says close to a third of health-care staff in Arizona nursing homes is vaccinated. About a quarter of nursing homes in the state report they have staffing shortages.
A spokesman for CMS said he cannot comment on pending litigation. But the agency defended the rules.
“There is no question that staff in any health care setting who remain unvaccinated pose both direct and indirect threats to patient safety and population health,’’ the statement said. “That is why it is imperative for health care providers to ensure their staff who may interact with patients are vaccinated against COVID-19.’’
The dispute over mandates has taken on political overtones on both sides, as Biden acknowledged in his September announcement. “Let me be blunt,’’ the president said. “My plan also takes on elected officials and states that are undermining you and these lifesaving actions.’’
Biden was referring at that moment to school vaccination and mask requirements, he had another message. “If these governors won’t help us beat the pandemic, I’ll use my powers as president to get them out of the way,’’ he said.
Brnovich said that shows a “disrespect for state governments.”
Brnovich faces a competitive GOP primary in the 2022 Senate race that also includes: Blake Masters, a top aide to billionaire entrepreneur Peter Thiel; solar power executive Jim Lamon; Michael “Mick” McGuire, retired adjutant general of the Arizona National Guard; and Arizona utilities regulator Justin Olson.
