In a preliminary injunction issued on Tuesday, November 30, 2021, a federal judge in Louisiana temporarily blocked the implementation and enforcement of an interim final rule by the Centers for Medicare & Medicaid Services (CMS) that would require employees of Medicare and Medicaid certified health care providers and suppliers to have an initial COVID vaccine by December 6, 2021 and be fully vaccinated by January 4, 2022.
The Court chose to issue a nationwide injunction that will apply in all states, with the exception of 10 states already subject to a preliminary injunction issued on November 29, 2021 – Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming – by the U.S. District Court in Missouri.
The 34-page order by U.S. District Judge Terry A. Doughtry temporarily blocks the vaccine mandate, as well as the CMS requirements that providers have in place certain policies and procedures related to documenting vaccinations, providing medical and religious exemptions from the vaccination requirement, and identifying and implementing accommodations for employees who are not fully vaccinated.
On November 5, 2021, CMS published the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, requiring vaccination of all employees at health care facilities that participate in the Medicare and Medicaid programs, regardless of responsibility or patient contact.
The states of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio filed suit in the U.S. District Court for the Western District of Louisiana and requested a preliminary injunction to temporarily block the implementation of the CMS mandate.
In his memorandum and order, Judge Doughtry detailed the basis for his decision to issue an injunction, and he found that the plaintiff states were likely to succeed on their claims that:
- The CMS vaccine mandate caused “particularized and concrete” injuries including alleged loss of jobs, business, and tax revenue.
- CMS was required to provide a 30-day “notice and comment period” before implementing the CMS vaccine mandate unless CMS could show good cause for avoiding this requirement. Good cause was not demonstrated in this case.
- The mandate has “vast economic and political significance” and CMS exceeded its authority in enacting the CMS Mandate.
- The mandate was contrary to law and arbitrary and capricious.
- The mandate would cause irreparable harm including:
- depriving the states of a procedural right to protect their interests
- depriving the states of a right to enforce their laws and requiring them to incur the costs of training on and enforcing the CMS Mandate and having their police power encroached
- placing a burden on the liberty interest of the states’ citizens requiring them to choose between losing their jobs or taking the vaccine
- burdening health care facilities and suppliers by requiring them to comply with the vaccine mandate or lose Medicare and Medicaid funding
Ultimately, Judge Doughtry determined the threatened harm of the CMS vaccine mandate outweighs any harm that may result if it is not implemented, and that the public interest is served by maintaining the current constitutional structure and maintaining the liberty of individuals who do not want to take the COVID-19 vaccine.
If CMS appeals, the case will be heard by the U.S. Court of Appeals for the 5th Circuit – a court that has recently addressed COVID vaccine mandate issues in a different context. In BST Holdings, LLC v. OSHA, the 5th Circuit enjoined the OSHA vaccine mandate, which applied to all businesses with more than 100 employees. Judge Doughtry described the issues presented in BST Holdings as “almost identical” to the considerations presented in the pending case involving the CMS vaccine mandate.
The fate of the CMS vaccine mandate is still uncertain. However, it is clear that the courts will continue to be involved.