Court Green Lights CMS Vaccination Mandate in 26 States, Next Steps Unclear

Posted on December 16, 2021 by Jonathan Lips

Following an order yesterday by the Fifth Circuit Court of Appeals, the CMS staff vaccination mandate is no longer subject to an injunction in Minnesota and 25 other states. CMS has not yet issued a statement in response to this development.

As a reminder, two different courts issued orders that temporarily blocked CMS from implementing the vaccination mandate rule in late November.

On Nov. 29, a federal court in Missouri blocked the rule in 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming), not including Minnesota. That injunction is still in place in those states after the Eighth Circuit Court of Appeals denied a motion from CMS to lift the lower court's injunction and reinstate the rule on Dec. 13.

Separately, on Nov. 30, a Louisiana court issued an injunction blocking the CMS rule in the remaining 40 states, including Minnesota, and CMS quickly filed an appeal to lift that injunction. While only 14 states (Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia) had filed the lawsuit as plaintiffs, the court felt that a nationwide injunction was necessary due to a need for uniformity. Yesterday's order from the Fifth Circuit partially upheld and partially reversed the Louisiana court's injunction: the court left the injunction in place for the 14 plaintiffs in the case but lifted it for all other states.

The result is that the CMS staff vaccine mandate is now blocked in 24 states (the ten states from the Missouri case and the 14 states that are plaintiffs in the Louisiana case) but is not blocked in the remaining 26 states, including Minnesota. 

What Happens Next?

Everyone is now eagerly awaiting guidance from CMS on what it intends to do.  Will they choose to implement and enforce the vaccine mandate only in the 26 non-enjoined states? And if yes, what will the enforcement deadlines be? These questions are critical, knowing the initial Phase 1 compliance date of Dec. 6 has already passed and that providers that operate across state lines may have employees in enjoined and non-enjoined states.

Observers expect CMS will appeal to the U.S. Supreme Court to lift the injunctions that remain in place for 24 states but clarifying what happens in the non-enjoined states in the meantime must be an immediate priority for CMS.

If CMS announces that it will implement and enforce the mandate in the 26 non-enjoined states, including Minnesota, we believe CMS will likely set a new deadline rather than require providers to comply immediately. CMS has yet to issue interpretive guidance for surveyors relating to these requirements, among other issues.

As of our publication deadline for this story, CMS has not commented on the Fifth Circuit ruling.  Its memorandum QSO-22-04-ALL remains in place, which states that it will not enforce the new rule regarding vaccination of health care workers while there are court-ordered injunctions in place prohibiting enforcement of this provision. However, we expect CMS will update the QSO soon with additional information.

Our team is working with LeadingAge, the Minnesota Department of Health, and our Long-Term Care Imperative partner to analyze today’s order and learn more about the implications for Minnesota providers.

OSHA Litigation Update

In addition to the CMS rule, we are also closely monitoring legal challenges to the OSHA Vaccination and Testing Emergency Temporary Standard, which have been consolidated under the jurisdiction of the Sixth Circuit Court of Appeals.  At this time, the OSHA ETS is still subject to a nationwide injunction. OSHA stated that it has suspended activities related to implementing and enforcing the ETS pending future developments in the litigation. OSHA has filed a motion to lift the injunction that blocks the ETS, and legal arguments were due to the court on Dec. 10.  We anticipate the Sixth Circuit will soon issue a decision on whether the injunction will remain in place, and we will provide any updates as soon as we have them.