As we reported, earlier this month, the Centers for Medicare and Medicaid Services (“CMS”) announced a vaccine mandate that applied to a wide range of healthcare facilities. Specifically, the Interim Final Rule with Comment Period (“IFC”), 86 Fed. Reg. 61,555 (Nov. 5, 2021), requires nearly every employee, volunteer, and third-party contractor working at a healthcare facility to be vaccinated against COVID-19. Under the IFC, covered workers must receive the first vaccine dose (or have requested an accommodation) on or before December 6, 2021. Covered workers are required to be “fully vaccinated” (or to have received an exemption) by January 4, 2022.
In response to the IFC, several states, including Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire filed suit in federal district court in Missouri alleging that the vaccine mandate exceeded CMS’s congressionally-prescribed authority and was arbitrary and capricious.
On November 29, the Missouri federal district court sided with the states and concluded that “Congress did not grant CMS authority to mandate the vaccine.” What is more, the court concluded that the vaccine mandate appears to offend federalism because “CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans.” Nevertheless, even if it did have the authority to issue the IFC, the court concluded that CMS violated the Administrative Procedure Act by implementing the final rule without the required notice and comment period.
Ultimately, the court granted the plaintiffs’ request for an injunction – preventing CMS from enforcing the IFC – but only in states that requested the injunction:
IT IS HEREBY ORDERED that Defendants are preliminarily enjoined from the implementation and enforcement of 86 Fed. Reg. 61,555 (Nov. 5, 2021), the Interim Final Rule with Comment Period entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” against any and all Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits of this action or until further order of this Court. Defendants shall immediately cease all implementation or enforcement of the Interim Final Rule with Comment Period as to any Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
Thus, unless additional states seek relief based on the court’s decision, CMS will not be prevented from enforcing the IFC in other states – including Minnesota and Wisconsin – during the pendency of the Missouri litigation.
Bottom Line
CMS will no doubt seek an immediate appeal of the court’s decision with the Eighth Circuit. However, it will take some time for the agency to file its appeal and for the Eighth Circuit to issue a decision. In the meantime, healthcare employers in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming should be aware that CMS is prohibited by court order from attempting to enforce the IFC in your states. However, under the current court order, CMS is not prevented from enforcing the IFC in any other state.
Ultimately, even if the Eighth Circuit reverses the Missouri court’s decision, at the very least, employers in the states listed above will have additional time to implement the CMS requirements. Healthcare employers in other states will not be eligible for a delay in the absence of further action by the court or CMS.
We will continue to monitor this issue as it develops.