For the third time in as many weeks, providers were handed conflicting decisions from two different federal appellate courts: the Fifth Circuit reversed the nationwide ban except in the 14 states named in the District litigation, whereas the Eight Circuit upheld the ban in 10 states. As a result of this most recent flurry of litigation, CMS’ mandate is temporarily blocked in 24 states: Alabama, Alaska, Arkansas, Arizona, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Ohio, Oklahoma, South Carolina, Utah and West Virginia and Wyoming. The other 26 states remain subject to the mandate, which requires full vaccination of healthcare workers by January 4, 2022, although CMS self-imposed suspension of the implementation and enforcement of the mandate in even those states. The conflicting, overlapping Court orders, coupled with CMS’ own indecision on enforcement of the mandate, leaves providers in a tenuous position, especially national and even regional providers whose facilities span states affected by the conflicting decisions.
Given the complexity of the matter, a brief review of the relevant history may be helpful:
- Nov. 4: the Centers for Medicaid and Medicare (“CMS”) advised that all healthcare workers in any setting accepting Medicaid or Medicare would be required to be fully vaccinated by January 4, 2022. Several lawsuits immediately followed.
- Nov. 23: the U.S. District Court of Northern District of Florida refuses to place a temporary restraining issue against the CMS’ ban.
- Nov. 29: the US District Court in Missouri grants the first injunction against CMS’ rule in the 10 states that brought the challenge - Missouri, which was subsequently joined by Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
- Nov. 30: the US District Court for Western Louisiana issues a nationwide injunction against the mandate, expanding the temporary injunction from the 14 states that requested it (Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia) to not just the 14 states before it but also to all other states (except the 10 states in the Missouri case)
- Dec. 2: CMS publishes a memorandum suspending enforcement of all activities related to the implementation and enforcement of its Nov. 4 mandate.