U.S. Supreme Court Will Hear Appeals of Vaccination Mandate for Health Care Providers on January 7; CMS Moves Ahead on Mandate in States Not Under Injunction

On November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) published interim final rules with comment requiring workers at health care providers and suppliers to be vaccinated against COVID-19.[1] Attorneys General in four states filed federal lawsuits challenging the mandate on behalf of 25 states, which resulted in a nationwide injunction against the mandate.[2] As a result of appellate court decisions in the Eighth, Eleventh, and Fifth Circuits, the injunctions were narrowed to the 25 states that were parties to the litigation.[3] 

In an unusual move, the U.S. Supreme Court has agreed to hear oral argument on an emergency basis on January 7, 2022 on the consolidated cases: the two injunctions prohibiting the vaccine mandate for health care workers from taking effect in 25 states.[4] In the same session, it will hear argument in disputes over OSHA’s vaccine-or-test mandate for all large employers. The Court will consider whether to let the mandates take effect while the underlying litigation challenging them continues.

On December 28, 2021, the Centers for Medicare & Medicaid Services (CMS) issued guidance on the staff vaccination mandate for the 25 states not covered by the two injunctions.[5] CMS expressly states that the mandate and its surveyor guidance are not in effect at this time for the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming. These are the states included in the two court injunctions.

The CMS guidance includes a memorandum applicable to all providers. Separate attachments for each of the 14 categories of Medicare and Medicaid providers and suppliers set out provider-specific guidance and survey procedures for determining compliance with the vaccine mandate.

While requiring 100% compliance of provider staff, CMS confirms that its goal is compliance, not termination of providers from Medicare and Medicaid.

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[1] CMS, “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” 86 Fed. Reg. 61555 (Nov. 5, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23831.pdf 
[2] The district court cases are discussed in CMA, “Courts Order Preliminary Injunctions Against Vaccination Mandate for Medicare and Medicaid Providers and Suppliers” (CMA Alert, Dec. 9, 2021), https://medicareadvocacy.org/courts-order-preliminary-injunctions-against-vaccination-mandate-for-medicare-and-medicaid-providers-and-suppliers/  
[3] On December 15, the Fifth Circuit, hearing the Louisiana appeal, upheld the injunction against the vaccination mandate, but limited the injunction to the 12 states that filed the lawsuit. State of Louisiana v. Becerra, No. 21-30734 (5th Cir. Dec. 15, 2021). 
[4] Miscellaneous Order (12/22/2021) (supremecourt.gov)  
[5] CMS, “Guidance for the Interim Final Rule – Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccinations,” QSO-22-07-ALL (Dec. 28, 2021), https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/guidance-interim-final-rule-medicare-and-medicaid-programs-omnibus-covid-19-health-care-staff-0