As we previously reported here, the Biden Administration has seen significant setbacks as courts around the country halt the administration’s vaccine mandates, including the emergency Interim Final Rule issued by the Centers for Medicare and Medicaid Services (CMS). Specifically, on November 29, Judge Matthew T. Schelp of the U.S. District Court for the Eastern District of Missouri enjoined the CMS Rule in the ten states who brought an action seeking preliminary injunction (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming). Shortly thereafter, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana enjoined the CMS Rule nationwide in a suit brought by 14 plaintiff states. As a result, the CMS Rule was halted nationwide on November 30.

CMS appealed Judge Doughty’s ruling to the Fifth Circuit. On December 15, the Fifth Circuit issued an opinion staying the injunction with respect to all states not a party to the action. The Court noted that Judge Doughty gave little justification for issuing an injunction outside the 14 states bringing the suit, and that as an issue of great significance being litigated across the country, the ultimate resolution of the CMS rule should have the benefit of competing decisions from other jurisdictions.

Practically speaking, the Fifth Circuit’s ruling means that the CMS Rule remains halted in the 14 states that are plaintiffs in the Louisiana action (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio) as well as the 10 states involved in the Missouri action. In the 26 states not involved in either action, the CMS rule is no longer enjoined. Those states include: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin.

Going forward, we expect to see guidance on implementation and enforcement issued by CMS as well as challenges brought by states not covered by either injunction. And, as the Fifth Circuit seems to suggest, competing rulings from multiple jurisdictions make Supreme Court review of the Rule likely. Ballard Spahr’s Labor & Employment Group is prepared to counsel impacted health systems and businesses about the status of the Rule, and how to plan given the constantly shifting landscape.