22 states ask feds to repeal COVID vaccine mandate for health care workers

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EXCLUSIVE – Twenty-two state attorneys general are asking the Biden administration to end it's "draconian vaccine mandate" for U.S. health care providers because it is causing critical shortages of health care workers and is justified with outdated data and science.

In a petition reviewed exclusively by Fox News Digital, 22 Republican state attorneys general, led by AG Austin Knudsen of Montana, demanded that the Health and Human Services Department (HHS) and Centers for Medicare and Medicaid (CMS) repeal the interim final rule, or IFR, that authorized the federal mandate in effect since November 2021.

"The more we dig into this, the more we look, this interim final rule was just completely arbitrary and capricious," Knudsen told Fox News Digital. "The science didn't ever back that the COVID vaccine was ever going to prevent transmission."

In the nearly 40-page document, the state attorneys general laid out their case for repealing the mandate that covers Medicare and Medicaid providers and affects virtually all health care workers in the country. It affects 10.4 million workers at 76,000 health care facilities as well as home health care providers.

Montana Attorney General Austin Knudsen (Montana DOJ, Attorney General's Office; Dukas/Universal Images Group via Getty Images)

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"Pfizer never tested its vaccine to see if it prevented transmission of COVID-19," the AGs wrote. "And when CMS issued the IFR, it didn’t know whether the vaccines would prevent COVID transmission."

"No data at the time conclusively demonstrated that the vaccines would prevent infection and transmission," the AGs said. They added that even fully vaccinated people contracted and transmitted COVID-19, a trend that has continued even with the introduction of a first-generation booster and the new, bivalent omicron booster, they claim.

"But that didn’t stop CMS from jamming through the IFR’s draconian vaccine mandate," the AGs said.

According to their filing, studies show that "compelled vaccination of millions of health care workers will not meaningfully limit COVID transmission."

A group protesting the vaccine mandate in Boston.  (Craig F. Walker/The Boston Globe via Getty Images)

"Even worse, the emergency vaccine mandate left health care facilities — already struggling to maintain needed staff ratios — in dire straits, further worsening staffing shortages in the health care sector, especially in rural and frontier States," the AGs noted.

"When that rule came down, and the months preceding that rule coming down, it was the No. 1 phone call and email message that my office received from health care workers just terrified of this," Knudsen told Fox News Digital.

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Knudsen said the mandate has had the biggest effect on nursing homes in Montana, where ten skilled nursing homes closed in 2022 due to a health care worker shortage.

"Now that ‘the pandemic is over,’ and given the likely violations of the numerous statutory and constitutional rights … the Secretary and CMS should take immediate action to repeal the IFR and withdraw the State Surveyor Guidance," the petition said.

Protesters gathered for a rally against COVID-19 vaccine mandates in front of the Lincoln Memorial in Washington Jan. 23, 2022.  (AP Photo/Patrick Semansky, File)

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The AGs said CMS "co-opted the states’ surveyor staffs to ensure compliance" with the mandate. It issued multiple directives treating the state surveyors like federal employees (the State Surveyor Directives)."

The AGs challenged the Biden health department's authority in authorizing the mandate, stating that in the 57-year history of the Medicare and Medicaid programs, HHS has never construed federal statutes "to authorize an industry-wide vaccination requirement." 

They said courts "must be skeptical" of CMS's claim that the agency can bypass congressional approval to impose the rule.

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"The very fact that CMS does not point to clear statutory authorization and instead collects a hodgepodge of different statutes to support its claimed authority is perhaps the best evidence of the major questions violation," the AGs argued.

Attorneys general from Louisiana, Kentucky, Tennessee, Mississippi, Arizona, Nebraska, Alabama, New Hampshire, Alaska, Ohio, Arkansas, Oklahoma, Florida, South Carolina, Indiana, Texas, Kansas, Utah and Missouri all signed the petition.

Fox News' Danielle Wallace contributed to this report.