On December 15, 2021, the U.S. Fifth Circuit Court of Appeals issued a ruling that reinstates the COVID-19 (coronavirus) vaccine mandate by the Centers for Medicare & Medicaid Services (CMS) in states that didn’t participate in lawsuits challenging the mandate. As a result, many health care employers in California, Oregon, and Washington are once again subject to the mandate, while health care employers in Arizona, Idaho, and Montana (three of the states that joined in the lawsuit) aren’t, at least for now (Louisiana v. Becerra, 5th Cir, Dec. 2021).
The CMS rule requires workers in most health care settings that receive reimbursements from Medicare or Medicaid to receive their final COVID-19 vaccination shot no later than January 4, 2022, so they’re fully vaccinated by January 18, 2022. We previously reported that on November 29, 2021, the states of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming successfully persuaded a federal district court judge in Missouri that CMS’s rule should be placed on hold in their states until a hearing can be held (Missouri v. Biden, ED Mo, Nov. 2021). The next day, a federal district court judge in Louisiana issued a similar ruling, but applied it to all of the U.S. except the 10 states that had filed the lawsuit in Missouri (Louisiana v. Becerra, WD La, Nov. 2021). CMS appealed the second decision to the Fifth Circuit, which whittled down the scope of the Louisiana federal district court’s ruling to only the states that had joined in that lawsuit: Arizona, Alabama, Idaho, Indiana, Georgia, Kentucky, Louisiana, Mississippi, Montana; Oklahoma, Ohio, South Carolina, Utah, and West Virginia.
Tips: As of today, CMS hasn’t yet updated its website to address the Fifth Circuit’s ruling. The “Litigation Update” section at the top of the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule FAQs was written before the Fifth Circuit’s decision was issued. The current text notes that the agency appealed both of the federal district courts’ rulings and adds, “While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.” Because the rule was on hold for over two weeks in states such as California, Oregon, and Washington, which hadn’t participated in litigation over the rule, it's unclear whether CMS will continue to hold off on enforcement in those states pending a final resolution of the litigation or possibly grant an extension for compliance. Vigilant will keep members posted on any developments.