On December 15, 2021, a panel of the Fifth Circuit Court of Appeals partially affirmed an injunction entered by the U.S. District Court for the Western District of Louisiana on November 30, enjoining the Centers for Medicare and Medicaid Services (CMS) from enforcing its Interim Final Rule (IFC) mandating that most Medicare and Medicaid-certified providers and suppliers take steps to ensure that all staff at the included healthcare facilities are vaccinated for COVID-19 (see the list of covered healthcare facilities, below).  The fourteen states affected by the ruling are: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio.  The Circuit Court’s ruling, however, vacates the District Court’s nationwide injunction.

The net effect of the Fifth Circuit order is that CMS, at least for now, is prohibited from enforcing the IFC vaccine mandate in the fourteen states that brought the Louisiana suit, while allowing the agency to proceed with enforcement in the rest of the country.  The Court noted, however, that other courts have reached differing conclusions on the vaccine mandate in other pending cases, a hint that the ultimate decision on “an issue of great significance” will eventually be in the hands of the U.S. Supreme Court.

In a related (earlier) development, on December 2, 2021, CMS issued a memo to State Survey Directors, announcing that it would suspend activities related to implementation and enforcement of the IFC mandate pending future developments in the Louisiana case and another pending in the Eastern District of Missouri covering the states of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.  Whether CMS will modify this decision with regard to the remaining 26 states no longer covered by the nationwide injunction is, at this point in time, unclear.

As we noted in a previous post, healthcare facilities covered by the IFC and affected by the mandate are:

• Ambulatory Surgical Centers (ASCs)
• Hospices
• Psychiatric residential treatment facilities (PRTFs)
• Programs of All-Inclusive Care for the Elderly (PACE)
• Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities)
• Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes
• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID)
• Home Health Agencies (HHAs)
• Comprehensive Outpatient Rehabilitation Facilities (CORFs)
• Critical Access Hospitals (CAHs)
• Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services
• Community Mental Health Centers (CMHCs)
• Home Infusion Therapy (HIT) suppliers
• Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) and
• End-Stage Renal Disease (ESRD) Facilities.

The CMS regulation does not apply to other health care entities, including physician offices.