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Red Light – Green Light: CMS Vaccination Mandate is On Again in 26 States?

The CMS vaccine rule -- which applies to the staff of many Medicare- and Medicaid-certified providers such as hospitals, long-term care facilities, home-health agencies, and hospices (“covered entities”), and which has dominated news headlines in recent weeks (see our prior posts on it here and here) – is back in action, at least in some states.

After a federal court in Missouri halted the CMS Rule in 10 states (see Missouri v. Biden, — F. Supp. 3d —, 2021 WL 5564501 (E.D. Mo. Nov. 29, 2021), a federal court in Louisiana issued a nationwide injunction purporting to enjoin the CMS Rule for the rest of the country, though only 14 states had brought the lawsuit in which the injunction was entered (see Louisiana v. Becerra, No. 3:21-CV-03970, 2021 WL 5609846 (W.D. La. Nov. 30, 2021). The government sought review by the Federal Appeals Court to “stay” (or halt) the nationwide injunction.

Today, the Fifth Circuit Court of Appeals issued its opinion partially upholding and partially reversing the district court’s injunction.  See Louisiana v. Becerra, No. 21-30734, 2021 WL 5913302 (5th Cir. Dec. 15, 2021).  The Fifth Circuit noted that the government is likely to prevail on limiting the scope of the nationwide injunction, and as such, the appellate court “stayed” the injunction with respect to jurisdictions outside of the 14 states included in the lawsuit. In other words, although the CMS Rule is still halted in the 14 states that brought the lawsuit in Louisiana, and in the 10 states that are part of the Missouri lawsuit, for everywhere else, the injunction is lifted.

 

CMS Vaccination Mandate Still Enjoined

CMS Vaccination Mandate Back In Place

 Alabama

 California

 Alaska

 Colorado

 Arizona

 Connecticut

 Arkansas

 Delaware

 Georgia

 Florida

 Idaho

 Hawaii

 Indiana

 Illinois

 Iowa

 Maine

 Kansas

 Maryland

 Kentucky

 Massachusetts

 Louisiana

 Michigan

 Mississippi

 Minnesota

 Missouri

 Nevada

 Montana

 New Jersey

 Nebraska

 New Mexico

 New Hampshire

 New York

 North Dakota

 North Carolina

 Ohio

 Oregon

 Oklahoma

 Pennsylvania

 South Carolina

 Rhode Island

 South Dakota

 Tennessee

 Utah

 Texas

 West Virginia

 Vermont

 Wyoming

 Virginia

 

 Washington

 

 Wisconsin

The major question on everyone’s mind is enforcement. On December 2, 2021, after the Missouri and Louisiana courts made their initial rulings, CMS released guidance to state surveyors instructing the surveyors that they must not survey providers for compliance with the CMS mandate requirements:

While CMS remains confident in its authority to protect the health and safety of patients in facilities certified 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. Accordingly, while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule.

Now that the vaccination mandate is back “on” in 26 states, we are all awaiting guidance from CMS on when enforcement in the non-enjoined states will start back up—if at all. This is of particular importance to covered entities, as the Phase 1 compliance deadline of December 6, 2021 has come and gone. Similarly, several covered entities have locations across state lines and may be forced to implement, and to comply with a hodgepodge of various federal, state, and local rules. Therefore, covered entities—in all states—should continue to be ready to put in place the policies and procedures necessary to comply with the CMS vaccination mandate. But, a reasonable interpretation of CMS’s December 2, 2021 instructions is that there should be no survey activity (even in states where the injunction is lifted) until after receipt of further guidance from CMS.

After today’s ruling, one thing remains clear, as noted by the Fifth Circuit: “This vaccine rule is an issue of great significance currently being litigated throughout the country.”

© 2022 Foley & Lardner LLPNational Law Review, Volume XI, Number 349
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About this Author

Taylor Appling Associate Houston  Labor & Employment Litigation
Associate

Taylor Appling is an associate in Foley & Lardner LLP’s Houston office and a member of the firm’s Labor & Employment Practice. Her experience includes defending large and mid-sized employers in state and federal court, working directly with general counsel, executive-level management, and human resources (HR) professionals to ensure compliance with employment laws and regulations, and developing proactive tools for preventing employment-related litigation.

Taylor takes a preventative approach to her practice; however, when employers are faced with litigation or other...

713-276-5020
Kara Schoonover Associate DC Health Care Cannabis
Associate

Kara Schoonover is an associate in the business law department of Foley & Lardner LLP. *Kara is admitted only in Maryland. She is practicing under the supervision of a member of the D.C. Bar.

Previously, Kara served as a summer associate in the firm’s Washington, D.C., office where she worked directly with partners in business, litigation, FDA, government contracting, and health care groups. In this role, she conducted legal research on compliance issues, including accidental and intentional adulteration for food companies, poison packing prevention for drug companies,...

202-295-4123
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