Member Article

On Jan. 13, 2022, the Supreme Court of the United States lifted the injunction on the Centers for Medicare and Medicaid (CMS) vaccine mandate (Mandate).[1] Previously, injunctions were imposed by district courts in Missouri and Louisiana, and affirmed on appeal by the Eighth and Fifth Circuits, respectively, thereby prohibiting enforcement of the Mandate in 24 states.[2] With the Court’s ruling, both injunctions are lifted, and CMS can enforce the Mandate nationwide as early as Jan. 27.

The Court agreed with the Biden administration that addressing infection-control risks in health care facilities—such as those posed by COVID-19—is part of the role of the Secretary of Health and Human Services (Secretary), and therefore the Mandate did not exceed the statutory authority of the Secretary. The Mandate enforces vaccination requirements among health care workers and support staff through the Conditions of Participation (CoPs) and Conditions for Payment (CfPs) on facilities receiving federal funds or reimbursement. The Court reasoned that various safety requirements are already enforced through CoPs and CfPs, such as requirements for training and infection-control measures.

The Court’s ruling addressed only the injunctions imposed on the Mandate and not the underlying issues, such as its constitutionality. The Court noted the injunctions are lifted pending the outcome of decisions from the Eighth and Fifth Circuits and any potential subsequent appeal to the Court. It is therefore feasible that this issue will reappear before the Court in the near future. That said, some Supreme Court commentators have stated that the Eighth and Fifth Circuits are likely to follow the Supreme Court’s reasoning such that this issue will not make it back to the Supreme Court.

On Dec. 28, 2021, CMS released updated deadlines and guidance to facilities and surveyors regarding enforcement of the Mandate. Under that guidance, the first deadline related to the first dose or an exemption under the Mandate will occur on Jan. 27, 2022, and the second deadline related to completion of the vaccination series will occur on Feb. 26, 2022.

In a statement released on Jan. 13, 2022, CMS confirmed that compliance timelines—Jan. 27 and Feb. 26—for unaffected states remain unchanged. With respect to the states that were impacted by the Supreme Court’s decision, CMS simply stated that health care facilities need to establish plans and procedures for compliance with the Mandate, but stopped short of stating that the Jan. 27 and Feb. 26 dates will apply to facilities in those states. Therefore, it is possible that CMS will release updated guidance on enforcement timelines for the 24 states in which the injunction is now lifted. For the time being, facilities should move forward as if the Jan. 27 and Feb. 26 dates will apply.

For more information on the Mandate, see our previous alert.

[1] Court Order and Opinion available here. The Court also ruled on injunction against the Occupational Health Safety Administration’s Emergency Temporary Standard.

[2] The states affected by the injunctions were 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.