How Did We Get Here?
On November 1, 2021, the Centers for Medicare & Medicaid Services issued the “CMS Vaccine Mandate” which requires in part:
- vaccination of all employees of health care providers that participate in the Medicare and Medicaid programs, regardless of responsibility or patient contact, unless the employee is granted a medical or religious exemption; and
- development of policies and procedures related to the same.
On November 29 and 30, 2021, Federal District Courts in Louisiana and Missouri granted injunctions to block the implementation of the CMS Vaccine Mandate. The Missouri injunction covered the states involved in that case. The Louisiana Court issued a nationwide injunction. The Biden Administration appealed the Louisiana case to the Fifth Circuit Court of Appeals and the Missouri case to the Eighth Circuit Appeals. The Fifth Circuit reduced the scope of the injunction issued by the Louisiana Court so that the Louisiana Court injunction applied only to the states that were parties to the case.
As a result, 26 states were not covered by either injunction. The Biden Administration then petitioned the Supreme Court to lift the injunctions.
The Court’s Decision
Based on the Supreme Court’s Decision, the CMS Vaccine Mandate must now be followed in the 24 states that were parties to the Louisiana and Missouri cases in addition to the 25 states, the District of Columbia, and the territories that were not covered by any injunctions. In reaching its decision to stay the injunctions, the Court noted that perhaps the most basic mission of the U.S. Department of Health and Human Services (DHHS) is to ensure that health care providers who care for Medicare and Medicaid patients protect their patients’ health and safety.
The Court also noted that the DHHS Secretary has long required that providers maintain and enforce an infection prevention and control program designed to help prevent the development and transmission of communicable diseases and infections. Finally, the Court determined that Congress had conferred upon the Secretary sufficient authority to require vaccination against infectious diseases in the context of a global pandemic and that the interim final rule, making vaccination against COVID-19 a requirement to maintain Medicare and Medicaid funding, was within that authority and was not arbitrary or capricious.
What Should Applicable Health Care Providers Do Next?
Check for any applicable state or local mandates
If a state or local mandate provides stricter vaccination or infectious disease control protocols, you should follow the state mandate. If your state or local mandate is less strict than the CMS Vaccine Mandate or that prohibits a vaccine mandate, the CMS Vaccine Mandate preempts the state or local mandate and must be followed based on the language of the CMS Vaccine Mandate.
Develop and implement policies and procedures
Providers from the 24 states that were parties to the Missouri and Louisiana cases, Alabama, Alaska, Arizona, Arkansas, Georgia, Iowa, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming, must be fully prepared to meet the first CMS Vaccine Mandate deadline by February 14, 2022.2
By that date, the following should occur:
- policies and procedures for ensuring all facility staff are vaccinated or received an exemption should be in place and
- 100% of staff should have received at least one dose of the COVID-19 vaccine, or have a pending request for, or have been granted, an exemption, or have been identified as needing a temporary delay before receiving the vaccine.
Work toward full implementation
By March 15, 2022, 100% of staff should be fully vaccinated or have been granted an exemption.
What Happens Next?
The Court’s decision only lifted the injunctions issued by the District Courts in Louisiana and Missouri and did not decide the validity of the injunctions. The validity of the original District Court decisions issuing the injunctions will now be considered by the Fifth and Eighth Circuit Courts of Appeal. The Supreme Court’s stay will remain in place and the CMS Vaccine Mandate must be followed while the injunctions are being considered by the appellate courts and during the expected appeals to the Supreme Court of the decisions by the Fifth and Eighth Circuits.
1 – Texas was not a party to the Louisiana or Missouri cases, but a District Court in Texas separately issued an injunction staying the implementation of the CMS Vaccine Mandate in Texas after the decisions in the Louisiana and Missouri cases. The Texas case was not part of the appeal to the Supreme Court and is not specifically covered by the Supreme Court’s order. The Biden Administration has appealed the District Court’s issuance of the injunction and it is expected that the Texas injunction will also be lifted consistent with the Supreme Court’s order.
2 -CMS issued guidance on January 14, 2022, which gives the 24 States that were parties to U.S. Supreme Court cases, additional time to meet the current CMS Vaccine Mandate deadlines.