Legal updates on challenges to CMS vaccination mandate may cause more uncertainty

Decisions over the past few days on Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccination mandate litigation we previously reported[BB1]  earlier this month may cause more confusion. The CMS vaccination rule, which includes original compliance deadlines of early January 2022 for health care workers, is now paused in 25 states (including Ohio) and in effect for the other 25 states.

On December 15, 2021, the U.S. Court of Appeals for the Fifth Circuit partially affirmed an injunction entered by a Louisiana district court as applied to facilities in the 14 states (including Ohio) that are plaintiffs in this case. The court stated that the federal government had not shown a “strong likelihood of success” that it would prevail in overturning the district court’s ruling by showing clear congressional authority to assert its authority in novel ways, such as requiring health care worker vaccination.

The Fifth Circuit Court’s ruling limited the scope of the injunction and vacated the District Court’s nationwide injunction noting that “[o]ther courts are considering these same issues,” and concluded that “[t]he vaccine rule is an issue of great significance currently being litigated throughout the country” and that “[it]’s ultimate resolution will benefit from ‘airing of competing views’” in other courts. The court therefore upheld the injunction only as applied to facilities in the 14 states that brought suit: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio.

These 14 states are in addition to the 10 subject to a Missouri district court preliminary injunction upheld by the Eighth Circuit: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.

On December 16, 2021, the Texas district court entered a preliminary injunction enjoining the CMS mandate for facilities in Texas which means that the CMS vaccine rule is now paused in 25 states but in effect for the other 25 states.

Next steps? The CMS vaccine rule will likely find its way to the U.S. Supreme Court as the federal government will likely ask to stay these injunctions upheld by the Fifth Circuit and Eighth Circuit. Most health care facilities developed policies for compliance with the CMS vaccination rule but those in the 25 states where the CMS vaccine rule is now paused are not enforcing any disciplinary action pending the outcome of further litigation and/or any updates to extend original compliance deadlines.