AG Landry: Judge helps save the struggling Health Care Industry and Health Care Workers

General Landry, Louisiana AG works hard to preserve the liberties he fought for as a National Guardsman, Veteran of Desert Storm.

General Landry watched his school teacher mother and architect father work hard and sacrifice even more to ensure their children had the best education possible. Greatly respecting these sacrifices, he joined the Louisiana National Guard while still in high school. Understanding that hard work and determination will prevail over any bad situation – General Landry awoke early each day to work in Louisiana’s sugar cane fields, as his first job out of high school.

General Landry worked his way through college as a police officer and a sheriff’s deputy. He experienced the necessity of protecting our communities and ensuring the law is faithfully executed by our elected officials, the Attorney General’s office, and the courts. As a veteran, General Landry faithfully upheld the oath to protect our civil liberties while keeping our communities safe.

General Landry is a veteran of Desert Storm and left the military with the rank of Sergeant. He received the Army Achievement Medal, the Army Commendation Medal, a National Defense Ribbon, an Overseas Training Ribbon and the Louisiana War Cross from his eleven years of service as a member of the Louisiana National Guard.

MAJOR BREAKING NEWS: Federal Court Halts Biden’s Attack On Healthcare Workers, AG Jeff Landry Claims Another Victory Over Vaccine Mandate

MONROE, LA – In a major win for our healthcare heroes, a federal court has halted the Biden Administration’s attempt to force COVID-19 vaccines on healthcare workers. Judge Terry Doughty just now ruled in favor of Louisiana Attorney General Jeff Landry’s request for a preliminary injunction against the CMS rule requiring the COVID shot on nearly every full-time employee, part-time employee, volunteer, and contractor working at a wide range of healthcare facilities receiving Medicaid or Medicaid funding.

In granting the injunction, Judge Doughty has issued a nationwide stop to the CMS mandate.

“I applaud Judge Doughty for recognizing that Louisiana is likely to succeed on the merits and for delivering yet another victory for the medical freedom of Americans,” said Attorney General Landry. “While Joe Biden villainizes our healthcare heroes with his ‘jab or job’ edicts, I will continue to stand up to the President’s bully tactics and fight for liberty.”

On November 15, Attorney General Landry led a 14-state coalition filing suitagainst the Biden Administration for acting without statutory authority, violating the Administrative Procedure Act, violating the Social Security Act, violating the Congressional Review Act, and violating the Constitution by promulgating and implementing Medicare and Medicaid Programs; Omnibus COVID-19 Heath Care Staff Vaccinations, 86 Fed. Reg. 61555 (Nov. 5, 2021).

“While our fight is far from over, I am pleased the Court granted preliminary relief against the President’s unconstitutional and immoral attack on not only our healthcare workers but also the access to healthcare services for our poor and elderly,” concluded Attorney General Landry. “I will see this case through to the end – fighting every step of the way to prevent the federal government from imposing medical tyranny on our citizens and turning last year’s healthcare heroes into this year’s unemployed.”

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

MEMORANDUM RULING

The issue before this Court is whether the Plaintiff States1 are entitled to a preliminary injunction against the Government Defendants2 as a result of a COVID-19 CMS vaccine mandate (“CMS Mandate”) implemented by the Government Defendants on November 5, 2021. 86 Fed. Reg. 61555-01. The CMS Mandate requires the staff of twenty-one types of Medicare and Medicaid healthcare providers to receive one vaccine by December 6, 2021, and to receive the second vaccine by January 4, 2022. Failure to comply with the CMS Mandate may result in penalties up to and including “termination of the Medicare/Medicaid Provider Agreement.” 86 Fed. Reg. at 61574.

According to the CMS, the CMS Mandate regulates over 10.3 million health care workers in the United States. Id. at 61603. Of those 10.3 million, 2.4 million healthcare workers are currently unvaccinated. Id. at 61607.

Implicit in determining whether a preliminary injunction should be granted is determining whether the Government Defendants have the statutory and/or constitutional authority to implement the CMS Mandate. Finding that the Government Defendants do not have

1 Plaintiff States consist of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio.
2 The Government Defendants consist of Xavier Becerra, in his official capacity as Secretary of Health and Human Services, The U.S. Department of Health and Human Services (“DHH”), Chiquita Brooks–Lasure, in her official capacity as Administrator of the Center for Medicare and Medicaid Services (“CMS”).

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the authority to implement the CMS Mandate, this Court GRANTS Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] and IMMEDIATELY ENJOINS and RESTRAINS the Government Defendants from implementing the CMS Mandate.
I. BACKGROUND

This case is about COVID-19 vaccine mandates. The CMS Mandate requires over 10.3 million healthcare workers to be fully vaccinated with one of the COVID-19 vaccines in two months. The first of two COVID-19 vaccines is required by December 6, 2021, and the second by January 4, 2022. The factual statements made herein should be considered as findings of fact and legal conclusions should be considered conclusions of law. This Court’s job is to examine the appropriate statutes and/or constitutional authority for the Government Defendants to issue the specific CMS Mandate discussed herein. The opinion expressed hereto is legal, not political or personal.

On March 13, 2020, President Trump declared the COVID-19 pandemic a national emergency. On March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a global pandemic.

On December 11, 2020, the U.S. Food and Drug Administration (“FDA”) issued an Emergency Use Authorization (“EUA”) for the Pfizer-BioNTech vaccine. The FDA issued an EUA for the Moderna COVID-19 vaccine on December 18, 2020, and issued an EUA for the Janssen COVID-19 vaccine on February 27, 2021.3 The Pfizer-BioNTech COVID-19 vaccine received FDA approval on August 23, 2021 for individuals sixteen years of age and older.4 On

3 https://www.fda.gov>COVID19-fre. 4 https://www.cdc.gov>vaccines.

2

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November 19, 2021, the FDA authorized Pfizer-BioNTech and Moderna COVID-19 boosters for all adults ages eighteen and older.5

The first cases of COVID-19 in the United States were recorded in January 2020.6 Cases began surging thereafter with the highest surge from October 2020 to February 2021. The seven- day average for cases in the United States recorded a high on January 12, 2021, at 250,512 cases. For the last ninety days, the seven-day average has declined from 164,374 on September 2, 2021, to 94,335 on November 23, 2021.7

In response to the pandemic, CMS issued six previous rules with regard to COVID-19. These rules were issued on April 6, 2020, May 8, 2020, September 2, 2020, November 6, 2020, May 13, 2021, and June 21, 2021. 86 Fed. Reg. at 61561. These previous actions dealt with revision of regulations, data reporting, and infection control requirements to protect healthcare workers from exposure to COVID-19. The June 21, 2021, Healthcare Emergency Temporary Standard (“ETS”) required healthcare workers to develop a plan for each workplace, which included patient screening, protective equipment, aerosol procedures, physical distancing, physical barriers, cleaning and disinfecting, ventilation, health screening, training, recordkeeping, and reporting. Id.

A. November 5, 2021 CMS Mandate

On November 5, 2021, CMS issued the disputed Interim Final Rule (“IFR”), which contained the requirements for mandating COVID-19 vaccines. The IFR was described by CMS as “revises the requirements that Medicare and Medicaid certified providers and suppliers must meet to participate in the Medicare and Medicaid Programs.”

5 https://www.nbcnews.com>health.
6 https://www.history.com>first-conf. 7 https://www.nytimes.com>us>cov.

3

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The Mandate was effective on November 5, 2021, and established COVID-19 vaccination requirements for staff, and this included Medicare and Medicaid – certified providers and suppliers. The Mandate implemented the COVID-19 vaccinations in two phases. The first vaccine is to be required by December 6, 2021, and the second vaccine is to be required by January 4, 2022. The CMS Mandate went into effect immediately; there was no notice and comment under the Administrative Procedures Act 5 U.S.C. 553.

The mandate applies to the employees of Medicare and Medicaid providers and suppliers listed. 86 Fed. Reg. at 61556. CMS claimed authority to issue the mandate pursuant to §§ 1102, 1863, and 1871 of the Social Security Act. 86 Fed. Reg. at 61560, 61567. The reasoning for the mandate was: “In light of our responsibility to protect the health and safety of individuals providing and receiving care and services from the Medicare and Medicaid certified providers and suppliers, and CMS’s broad authority to establish health and safety regulations, we are compelled to require staff vaccinations for COVID-19 in these settings.” 86 Fed. Reg. 61560.

CMS indicated its mandate was “complementary to the OSHA ETS”,8 which also requires mandatory vaccinations. (Occupational Safety and Health Administration (“OSHA”)). CMS admittedly has not previously required any vaccinations. 86 Fed. Reg. 61567. The mandate discussed the potential effect of health care workers choosing to leave their jobs rather than be vaccinated but concluded9 there was insufficient evidence to quantify and compare adverse impacts on patient and residential care associated with temporary staffing losses. 86 Fed. Reg. at 61569.

8 The United States Court of Appeals for the Fifth Circuit has stayed the implementation of the OSHA ETS pending adequate judicial review of the motions for preliminary injunction. BST Holding’s LLC v. Occupational Safety and Health Administration 21-60845 (November 12, 2021).
9 Despite approximately 2.4 million unvaccinated healthcare workers.

4

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Like the OSHA mandate,10 the CMS mandate is described as a “common set of provisions for each applicable provider and supplier as there are no substantive regulatory differences across settings.” 86 Fed. Reg. at 61570.

The CMS mandate also requires that the medical providers and suppliers “track and securely document” the vaccination status of each staff member, including storing staff members’ medical records showing proof of vaccination. 86 Fed. Reg. 61572. The CMS mandate allows exemptions that are based upon existing Federal law. The mandate specifically states that it “preempts” the applicability of any state or local law providing for exemptions. 86 Fed. Reg. 61572.

In not inviting notice and comment pursuant to the Administrative Procedures Act, 5 U.S.C. 553, CMS found “good cause” that notice and comment procedures are impracticable, unnecessary, or contrary to the public interest based upon the reasons set out at 86 Fed. Reg. 61583 to 61585.

B. The Executive Branch’s Vaccine Policy

President-Elect Biden initially did not think vaccines should be mandatory11. On September 9, 2021, President Biden changed his mind announcing his intention to impose a national mandate12.

Both the OSHA Mandate and the CMS Mandate were imposed approximately two months later on November 5, 2021.

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