In a preliminary injunction issued on Monday, November 29, 2021, a federal judge in Missouri blocked the implementation and enforcement in 10 states of an interim final rule by the Centers for Medicare & Medicaid Services (CMS) that would require employees of Medicare and Medicaid certified health care providers and suppliers to have an initial COVID vaccine by December 6, 2021 and be fully vaccinated by January 4, 2022.
The 32-page order by U.S. District Court Judge Matthew T. Schelp applies only to Medicare and Medicaid certified providers and suppliers in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
In addition to blocking the vaccine mandate, the order also stays CMS requirements that providers have in place certain policies and procedures related to documenting vaccinations, providing medical and religious exemptions from the vaccination requirement, and accommodations for employees who are not fully vaccinated.
As outlined in our prior alert, CMS on November 5, 2021 published the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, requiring vaccination of all employees at health care facilities that participate in the Medicare & Medicaid programs, regardless of responsibility or patient contact.
Just five days later, on November 10, the states of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming filed a lawsuit challenging the CMS vaccine mandate and soon after requested a preliminary injunction.
In his memorandum and order, Judge Schelp discussed the basis for his decision to issue an injunction:
- Given the vast economic and political impact of the CMS vaccine mandate, CMS needed clear authorization from Congress before issuing such a mandate, which it did not have.
- Even if CMS is authorized to mandate COVID-19 vaccination for health care workers, it could not lawfully do so without a notice and comment period before the effective date.
- The plaintiff states established that they were likely to succeed with their claim that the CMS vaccine mandate was arbitrary and capricious.
- The plaintiff states would be irreparably harmed if the vaccine mandate was not enjoined.
- The alleged irreparable harms included:
- inability of the states to enforce their own laws regarding vaccination mandates and proof of vaccination
- exacerbation of already existing health care facility staffing shortages
- significant economic harm, especially in rural areas where vaccination rates are relatively low
Judge Schelp also remarked that the status quo, without the vaccine mandate, is better than it was even a few months ago and is sufficient to protect the public’s interest in stopping the spread of COVID-19.
If CMS appeals, the appeal will go to the U.S. Court of Appeals for the 8th Circuit.
The injunction in the Missouri case applies only to the 10 plaintiff states involved in the Missouri lawsuit and does not apply to the other 40 states. Three other challenges to the CMS vaccine mandate are pending in federal courts in Florida, Louisiana and Texas. The Florida court has previously declined to enjoin the enforcement of the CMS vaccine mandate.
The status of the CMS vaccine mandate in the remaining 40 states could change if other states join the Missouri lawsuit, if the courts in Louisiana and Texas decide to follow Judge Schelp’s ruling, or if CMS decides to take a different approach.