February 6, 2023

Volume XIII, Number 37


February 06, 2023

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February 03, 2023

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New Ruling Throws Healthcare Facility Vaccine Mandates Into State Versus State


  • Vaccine mandates are back for healthcare facilities in 26 states

  • There is no guidance yet from Centers for Medicare and Medicaid Services on its enforcement stance

  • This appellate court ruling casts doubt on the legality of CMS vaccine mandates

In the wake of a Dec. 15, 2021 ruling out of the U.S. Court of Appeals for the Fifth Circuit Court, healthcare facilities in just over half the states in the country are once again under a federal mandate to vaccinate workers and ensure others who appear routinely on their premises are vaccinated.

The ruling  partially revives the Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate requiring healthcare facilities’ staff and others to get vaccinated against COVID-19 or lose funding from CMS. It essentially limits a lower court’s nationwide injunction to just the 14 states that sued to block the mandate. The mandate remains blocked in an additional 10 states  subject to an earlier injunction in a different federal court 

The 14 states that sued in federal court in Louisiana – Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia – now join the additional 10 states subject to a Missouri federal court injunction. Those states are Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

While the mandates may be tested in other courts, facilities would be well-advised to continue their preparations for vaccine mandates in the event of a further reversal of these injunctions. And in states that are subject to the mandates once again, facilities should consider weighing the threat of enforcement against other practical issues in implementing the rules – while the industry awaits further CMS guidance.

The appellate court, while casting doubt on the ultimate legality of the CMS mandate, found that the preliminary injunction should only apply in the 14 states party to the lawsuit, not nationwide, because “[t]his vaccine rule is an issue of great significance currently being litigated throughout the country. Its ultimate resolution will benefit from the ‘airing of competing views’ in our sister circuits.”

In upholding the injunction for the states that sued, the court said it appears likely that the vaccine mandate will not prevail as it moves through other courts. That said, the court noted that there are significant differences between the healthcare worker vaccine mandate and another vaccine mandate applying to businesses employing more than 100 people – as that mandate has also been enjoined. The court stated that the key difference between the two types of mandates was that the healthcare worker vaccine mandate was targeted at healthcare facilities, “especially nursing homes … where COVID-19 has posed the greatest risk.”

CMS did not immediately comment on its intent to enforce the vaccine mandate in the 26 states not presently affected by the injunction. Previously, CMS said it would not enforce the vaccine rule while preliminary injunctions are in place, but it is not yet clear how aggressive CMS will be in enforcing the mandate in only half the states given this ruling, and given that initial deadlines it set have already passed. 

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 350

About this Author

Michael Grubbs, Barnes Thornburg Law Firm, Indianapolis, Healthcare Law Attorney

J. Michael Grubbs is a partner in the Healthcare Department. He serves as administrator of the department for the Indianapolis, Indiana office. His practice includes representation of healthcare providers before state and federal healthcare regulatory agencies and in related litigation matters. His work also includes resolution of reimbursement and regulatory compliance issues as well as structuring or restructuring ventures and transactions to avoid problems before they arise.

Prior to entering the practice of law in 1988, Mr. Grubbs worked in...

Mark E. Rust Barnes Thornburg Law firm Chicago Corporate Finance and Healthcare Law Attorney

Mark Rust is Managing Partner of the Chicago office of Barnes & Thornburg, LLP, and Chair of the firm’s national Healthcare Department. Mr. Rust concentrates his practice in transactional, regulatory and medical-legal issues affecting healthcare entities and provider organizations. For nearly 30 years he has written about or practiced in healthcare law, writing in a wide variety of publications from theJournal of the American Bar Association to USA Today. He is listed as a notable healthcare lawyer in Chambers USA, Top Healthcare Lawyers of Illinois,Superlawyers...

Laura D. Seng, Barnes Thornburg Law Firm, South Bend, Healthcare Attorney

Laura Seng is a partner in Barnes & Thornburg LLP’s South Bend, Indiana, office and is the chair of firm's national Healthcare Department. Ms. Seng concentrates her practice in regulatory compliance, transactional matters and medical-legal business issues for healthcare entities and individual providers. She is listed as a notable healthcare lawyer by Best Lawyers in America® and was recognized by her peers in Indiana Super Lawyers® as a “Rising Star” in healthcare law.  

Ms. Seng represents hospitals, physicians, multi-specialty clinics and healthcare...