The Centers for Medicare and Medicaid Services' (CMS) vaccine mandate is, for the time being, not enforceable in New Hampshire and nine other states. On Monday, November 29, 2021, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction blocking the mandate.
What is the CMS Mandate?
The CMS vaccine mandate requires that select healthcare workers at facilities receiving Medicare and or Medicaid funding be fully vaccinated by January 4, 2022.
On November 5, 2021, CMS issued the "Medicare and Medicaid Programs Omnibus COVID-19 Health Care Staff Vaccination" interim rule requiring employees (even those not in direct contact with patients), third-party contractors, and volunteers at 15 categories1 of healthcare facilities to be vaccinated against COVID-19. Covered employees must receive the first vaccine before December 6, 2021, and be fully vaccinated by January 4, 2022. The rule excludes employees who provide support services solely on a remote basis.
Why has the mandate been blocked for the time being?
On November 10, 2021, Plaintiffs from ten states, including New Hampshire, collectively challenged the mandate.
The 32-page order found that the Plaintiffs are likely to succeed in arguing that CMS lacks the congressional authority to mandate the vaccine. U.S. District Court Judge Matthew Schelp reasoned that the mandate is an overstep of the agency's authority, stating "[t]he nature and breadth of the CMS mandate requires clear authorization from Congress - and Congress has provided none."
Furthermore, the Court found that the Plaintiffs' argument that CMS violated administrative law warrants injunctive relief. Judge Schelp reasoned that the "mandate is likely an unlawful promulgation of regulations" because CMS failed "to allow notice and comment" in abidance with the Administrative Procedure Act and Social Security Act procedures.
Finally, the Court finds that the argument that CMS's mandate is arbitrary and capricious is likely to succeed because of the alleged lack of evidence regarding the covered healthcare facilities and because CMS rejects alternatives to the mandate.
What does this mean for employers covered by the CMS vaccine mandate?
CMS currently cannot enforce its vaccine mandate against any facility in New Hampshire. However, this does not mean that CMS will be prevented from enforcing the mandate in the future. Therefore, employers should continue to plan to implement the mandate in case the injunction is lifted.
What does this mean for other federal mandates?
The Fifth Circuit Court of Appeals already stayed the enforcement of the OSHA Emergency Temporary Standard on November 12, 2021. See Fifth Circuit Blocks OSHA's Emergency Standard for Employers with 100+ Employees.
On November 30, 2021, a federal judge issued a preliminary injunction blocking the implementation of President Biden's Executive Order 14042 vaccine mandate for federal contractors in Kentucky, Ohio, and Tennessee only. Because the injunction does not include New Hampshire, covered federal contractors in the Granite State must continue to comply with the Executive Order's requirements.
What are the Next Steps?
It is unclear whether the mandate will go into effect. The injunctive order itself may be appealed. Furthermore, a full hearing on the merits of the Plaintiffs' arguments has yet to be held. Notably, the decision from a full hearing can also be appealed. Other states might bring similar legal challenges, which could eventually be consolidated into a single action in a single Circuit Court of Appeals. Ultimately this question will likely be reviewed by the United States Supreme Court.
McLane Middleton will continue to monitor these developments and provide an update as soon as new developments occur.
Footnote
1 Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Medicare Federally Qualified Health Centers, and Long Term Care facilities.
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