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CMS Healthcare Worker Vaccination Mandate Moves Closer to Finish Line

January 13 Supreme Court opinion allows implementation while lawsuits continue

BY STEPHEN ABRESCH | JANUARY 2022

In a 5-4 decision on January 13, the US Supreme Court handed down an opinion allowing the Centers for Medicare & Medicaid Services (CMS) to move forward with the implementation of its healthcare worker vaccination mandate while the cases of Biden v. Missouri and Becerra v. Louisiana continue to move through appellate courts. Justices Breyer, Kagan, Kavanaugh, Roberts and Sotomayor sided with the federal government; Justices Alito, Barrett, Gorsuch and Thomas dissented.

The Supreme Court did not rule on the constitutionality of the mandate—its opinion only allows implementation to move forward while appellate courts continue to consider the matter.

CMS can now move forward with implementation of the mandate in all states, Washington, DC, and US territories. Texas, which had secured a preliminary injunction against CMS in a separate lawsuit, was not part of the Biden administration’s application to the Supreme Court and is not impacted by this opinion. Following the January 13 opinion, Texas filed a request to dismiss its lawsuit in light of the Supreme Court’s opinion, which the judge granted on January 19. CMS issued Texas-specific guidance on January 20, establishing compliance deadlines for facilities in the state.

Background

On September 9, 2021, President Joe Biden announced his administration’s “Path Out of the Pandemic” plan, a national pandemic response strategy that included a vaccination requirement for the 17 million healthcare workers employed at healthcare settings, including ASCs, that are regulated by CMS. This was the first time the administration revealed information about the CMS healthcare worker COVID-19 vaccination mandate, which has now spent four months working its way through the legal system, with half of all the states signed on to lawsuits opposing it.

Even without the actual text of the mandate available, opposition from states quickly followed. On the same day as the administration’s announcement, Nebraska Governor Pete Ricketts (R) issued a press release announcing the state would explore all of its options to oppose the mandate. Governors in Georgia, South Dakota and Texas tweeted out that they were doing the same. By September 16, 24 states had signed an open letter to the Biden administration opposing the CMS vaccination mandate, making it clear that half the states were ready to fight the mandate in court when CMS released its interim final rule (IFR).

The IFR, released November 4, 2021, adds a new section to the ASC Conditions for Coverage at § 416.51(c) that requires ASCs to establish and implement policies and procedures “for COVID-19 vaccination of all staff (includes employees; licensed practitioners; students, trainees, and volunteers; and other individuals) who provide care, treatment, or other services for the provider or its patients.” The original timeline established by the IFR required facilities to ensure all staff had received the first dose of a COVID-19 vaccine by December 6, 2021, and all staff had received all necessary shots to be fully vaccinated against COVID-19 by January 4, 2022.

Less than two weeks following the release of the IFR, 23 states sued to stop implementation of the CMS vaccination mandate in lawsuits filed by Louisiana, Missouri and Texas. Kentucky and Ohio signed on to the Louisiana-led lawsuit shortly after, bringing the total number of states suing the administration to 25. All three of the lawsuits sought a preliminary injunction to halt implementation of the mandate while the matter worked its way through the courts, and all three argued that CMS had exceeded its legal authority in issuing the mandate and that the way the regulations were promulgated violated provisions of the Administrative Procedure Act and the Social Security Act.

While the Missouri-led lawsuit secured a limited preliminary injunction on November 29, 2021, on November 30, 2021, the judge in the Louisiana-led lawsuit granted the plaintiffs a nationwide preliminary injunction, halting implementation of the vaccination mandate across the country. This would not last long, however, as on December 15, the US Court of Appeals for the Fifth Circuit issued an order overturning the nationwide preliminary injunction but allowing the injunction to remain in place in the 24 plaintiff states represented in the Louisiana and Missouri lawsuits. On the same day, a judge granted Texas a preliminary injunction in its independent lawsuit against the mandate. When the Supreme Court announced on December 22, 2021, that it would hear oral arguments on the cases January 7, the country was evenly divided between states where CMS could begin implementation and states where it was barred from doing so.

On January 7, the Supreme Court took up the question of whether to overturn the preliminary injunctions granted to the Louisiana and Missouri lawsuits and allow CMS to begin implementation nationwide. It is important to note that the question of the constitutionality of the CMS mandate has not yet been argued in front of the Supreme Court.

Going Forward

This all brings us to today, with the CMS mandate on far more solid footing. The CMS vaccination mandate must still work its way through courts of appeals, but the Supreme Court’s January 13 opinion indicates that when the Court rules on the constitutionality of the mandate, it will likely uphold it in a 5-4 decision. CMS also has moved forward with implementation but with revised compliance deadlines. While it had previously issued guidance (general and ASC-specific) on December 28, 2021, establishing compliance deadlines for facilities in the 25 states not covered by a preliminary injunction, new guidance (general and ASC-specific) was issued January 14 for the 24 states—Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming—previously covered by preliminary injunctions. The January 14 guidance establishes a new set of compliance deadlines for the 24 states, while explicitly stating that these deadlines do not apply to Texas, which received its own guidance (general and ASC-specific) on January 20 following dismissal of its lawsuit.

ASCA continues to follow the legal developments surrounding the CMS healthcare worker vaccination mandate closely. Please write Stephen Abresch with any questions.