The CMS vaccine mandate remains halted in 24 states, including Ohio, but is “on” once again in 26 states following orders issued by two separate courts. On Nov. 15, 2021, a panel for the Fifth Circuit Court of Appeals partially affirmed an injunction entered by the U.S. District Court for the Western District of Louisiana, enjoining the Centers for Medicare and Medicaid Services (CMS) from enforcing its rule mandating that Medicare- and Medicaid-certified providers and health care facilities ensure its staffers are vaccinated from COVID-19. The original injunction was entered on Nov. 30, 2021 and, although the underlying lawsuit was joined by only 14 states, the U.S. District Court for the Western District of Louisiana expanded the scope of the injunction nationwide.
CMS Vaccination Mandate Remains Halted in 24 States
On Wednesday, the Fifth Circuit Court of Appeals upheld the injunction but narrowed it to only the 14 states involved in the lawsuit. These states include Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia.
In a separate case, the U.S. District Court for the Eastern District of Missouri enjoined CMS from enforcing its rule in 10 other states, including Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota and South Dakota. As a result, the CMS vaccine mandate is enjoined in 24 states and remains in effect in 26 states.
CMS Vaccine Mandate Challenged in Other States
Texas has also challenged CMS’ vaccine mandate and requested an injunction to block enforcement in the U.S. District Court for the Northern District of Texas. However, the case was stayed after an injunction hearing because of the nationwide injunction issued by the U.S. District Court for the Western District of Louisiana, which was recently lifted. Florida has also filed suit, but the Florida District Court refused to enjoin the vaccine mandate. On December 7, 2021, the 11th Circuit Court of Appeals upheld the Florida District Court’s decision and refused to enjoin the CMS vaccine mandate in Florida.
CMS Previously Suspended Implementation of Vaccine Mandate Pending Litigation
Nevertheless, following the issuance of the two injunctions by the Missouri and Louisiana courts, CMS issued an update to its vaccine mandate, suspending activities related to the implementation and enforcement of its mandate pending the ongoing litigation. Further guidance is expected from CMS now that the nationwide injunction has been lifted, particularly given that certain deadlines under the CMS vaccine mandates have already passed. Further appeals are also expected in the Missouri, Louisiana and Texas courts, as well as those remaining states and territories now not covered by the injunctions.
Biden Asks Supreme Court to Reinstate CMS Vaccine Mandate
Late Thursday, the Department of Justice asked the Supreme Court to reinstate the CMS vaccine mandate, requesting that it lift the lower court’s rulings. The lawsuit seeks a stay of the injunctions to “allow the Secretary’s urgently needed health and safety measure to take effect before the winter spike in COVID-19 cases worsens further.”
KJK is closely monitoring developments and will provide updates as soon as they come available. In the meantime, if you need guidance regarding the vaccine mandates and how they may impact you or your business, contact Rob Gilmore at rsg@kjk.com or 216.736.7240 or Kirsten Mooney at kbm@kjk.com or 216.736.7239.