As of today, two separate United District Court decisions have enjoined CMS from implementing or enforcing the CMS Interim Final Rule requiring staff vaccination (“CMS Mandate”). In State of Missouri, et al. v. Joseph R. Biden, Jr., the United States District Court for the Eastern District of Missouri ruled that CMS must suspend implementation and enforcement of the CMS Mandate with respect to the 10 states that were parties to the litigation. In State of Louisiana, et al. v. Xavier Becerra, et al., the United States District Court for the Western District of Louisiana issued a similar Order enjoining CMS from implementing and enforcing the CMS Mandate for not only the parties, but also to the rest of the nation. The United States Supreme Court has not decided the issue of whether a “nationwide” injunction issued by a federal district court is legally binding on those states not a party to the lawsuit.
In response to the court orders, CMS has issued the following statement, which appears to acknowledge the nationwide injunction, and that CMS will be prevented from implementing and enforcing mandate until appeals of these determinations are rendered by higher courts:
“On November 29, 2021, the United States District Court for the Eastern District of Missouri issued a preliminary injunction against the implementation and enforcement in ten states of Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61,555, 61,556 (Nov. 5, 2021). On November 30, 2021, the United States District Court for the Western District of Louisiana issued a nationwide preliminary injunction against the implementation and enforcement of the same rule, with the exception of the ten states covered under the first preliminary injunction. CMS has appealed both of these decisions, and has filed motions for stays of these orders. While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation. Please note that the comment period is separate from the litigation.”
It is uncertain at this point how long it will take these issues to be resolved through the higher courts.
In the wake of this nationwide injunction, healthcare providers have several options to consider. First, as has long been permissible, they may choose to implement their own Mandatory Vaccination Policies, consistent with applicable law. Second, providers may choose to continue with their existing efforts to encourage staff vaccination, and implement the policies directed by the CMS Mandate; however, until these court cases have been resolved or the CMS Mandate is re-instituted, providers would not terminate or suspend any staff who do not timely receive vaccinations in accordance with the deadlines set forth in the CMS Mandate. Finally, a provider could halt mandatory vaccination policy implementation until such time as the litigation is resolved, understanding that a rapid return to implementation may be necessary if the CMS Mandate is re-instated by the courts.
These are complex and rapidly-changing issues. We will continue to monitor the proceedings and status of the CMS Vaccine Mandate for our clients and will provide guidance as warranted.
As always, please do not hesitate to contact us with any questions you may have regarding the status of the CMS Vaccine Mandate and how your organization should proceed.
Office Number: 717-620-2424
Glenn Davis – gdavis@ldylaw.com
David Marshall – dmarshall@ldylaw.com
Andy Dollman – adollman@ldylaw.com