In the never-ending saga of the vaccine mandate imposed for health care workers by the Centers for Medicare and Medicaid Services (“CMS”), the government had a favorable result yesterday. CMS suspended its vaccine mandate pending the resolution of court injunctions. The original CMS mandate was supposed to go into effect December 6, 2021 (for the first dose) and January 4, 2022 (for the second dose if applicable) for CMS-regulated entities (such as hospitals, critical access hospitals, and other regulated entities listed in our prior client alert. However, CMS suspended the mandate pending two preliminary injunctions, one of which (the one pending in the Fifth Circuit Court of Appeals and affecting ALL states) has been lifted. The other one (the one pending in the Eighth Circuit Court of Appeals) remains in place, and the briefing schedule goes into January, meaning that the states affected by the Eighth Circuit injunction will not have the health care worker mandate enforced in the near future, absent some unexpected development.
Here is what this means for our hospital clients and other regulated entities:
- If you are in Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, or South Dakota, the CMS mandate is halted by a federal judge in Missouri, pending Eighth Circuit review – and nothing is likely to happen before the middle of January. Regulated entities in these states may opt to mandate a vaccine if they wish, unless state law prohibits it, but are not required to do so.
- If you are in Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, or Ohio, the CMS mandate is halted by a district court judge in Louisiana and for these 14 states, the Fifth Circuit Court of Appeals has upheld the injunction – so regulated entities in these states may opt to mandate a vaccine if they wish, unless state law prohibits it, but are not required to do so.
- If you are in one of the other 26 states, it is a bit unclear at the moment whether CMS is going to enforce the mandate – the CMS memorandum suggests that surveyors could proceed to enforce and survey compliance with the mandate, as the CMS suspension was contingent on the preliminary injunctions being in place, and for these 26 states, the injunction has been lifted. Hopefully CMS will issue clarification on the timing of enforcement, given that the first of its compliance dates (Dec. 6, 2021) has passed.
