Twelve states have sued the federal government to overturn a requirement that health care workers who come into contact with vulnerable patients on a regular basis be vaccinated.
In a lawsuit filed on Monday, the states claimed that the mandate violates their rights to freedom of association and the free exercise of religion. The states are arguing that the federal government should have sent them a letter at the time the rules took effect last year in the 2017-2018 fiscal year.
The states – California, Connecticut, Hawaii, Illinois, Kentucky, Massachusetts, Michigan, New Jersey, New York, Oregon, Rhode Island and Vermont – are joined by the New York-based National Federation of the Blind, Disability Rights Advocates and the Union of Concerned Scientists, and by several healthcare and patient safety groups.
All those plaintiffs are part of the National Vaccine Information Center (NVIC), which has been fighting vaccination in a number of states, first starting in New Jersey. The US Centers for Disease Control and Prevention, joined by the American Medical Association, the American Academy of Pediatrics and a host of other groups, have dismissed the NVIC’s warnings that vaccines increase the risk of autism and other diseases.
The vaccine mandate was imposed by the Affordable Care Act’s Independent Payment Advisory Board (IPAB), created as part of the 2010 law. The IPAB was meant to be an independent, scientific-sounding tool that would cut down on soaring healthcare costs, and perhaps even stop health insurance from being passed on to patients as hospital deductibles.
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But instead the IPAB turned out to be hugely unpopular with healthcare companies and consumer groups alike. The IPAB has drawn a barrage of lawsuits from states that contend it is an unconstitutional unfunded mandate. Two years ago, a federal judge in Nebraska ruled that the IPAB’s immune clause constitutes a religious mandate. But the 9th US circuit court of appeals earlier this year overturned that ruling.
The new lawsuit alleges that the IPAB did not properly inform the states of its policy when the rules took effect in 2017. In order to test the claims, the states say that they would test the vaccine mandate if it becomes a direct mandate in the near future and would if the law ever becomes permanent.
The NPIC director and CEO, Stephen Nasatir, said the lawsuit was a planned, but necessary, effort to challenge federal policies that were harmful to his organization. He said the states had a right to be concerned about the rights of their citizens.
“Our members have been discriminated against by the federal government,” he said. “They got health care through the individual market – their provider is the state. If the state is discriminating against members of their physician community, then it’s certainly being discriminatory against individuals.”
The lead attorney for the states, Shaun Blair Carr, said the lawsuit was a necessary one to protect consumers. “The fact is this is a policy decision made by the federal government that affects numerous state employees, and we’re really not able to hold the federal government accountable because the federal government is not subject to the oversight of the US supreme court.”
Carr said that under the National Association of State Directors of Health Services, a group of state directors are working on framing the lawsuit, so that the group would, if necessary, also take on the federal government. “I don’t know exactly which state director is going to file a suit. But the idea is to bring all the states together.”