CMS Suspends Vaccine Mandate, Appeals Court Injunctions

December 5, 2021, Amy Stulick, Skilled Nursing News - The Centers for Medicare & Medicaid Services (CMS) has suspended its vaccine mandate for health care staff, including those who work in nursing homes, so long as court injunctions remain in effect.  CMS announced the mandate suspension in a memo on Thursday, adding that it has appealed both court decisions and has filed motions for stays of these orders.

Two preliminary injunctions were issued this week, most recently by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana on Nov. 30, and another issued on Nov. 29 by Missouri U.S. District Court Judge Matthew Schelp.  The Missouri injunction involves 10 states while the Louisiana ruling applies nationally, blocking the vaccine mandate from taking effect. 

“Between the two of them, these injunctions cover all states, the District of Columbia and the US Territories,” CMS said in its memo.  “While CMS remains confident in its authority to protect the health and safety of patients in facilities certified 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.”

Compliance surveys, CMS added, would not require facilities to follow the vaccine mandate, although they are invited to “voluntarily choose to comply with the Interim Final Rule.”

The agency’s vaccination rule was first announced Aug. 18 for nursing homes only, before CMS expanded the mandate in September for all health care settings that receive Medicare or Medicaid; guidance issued Nov. 4 added all health care workers must be fully vaccinated by Jan. 4. 

The Louisiana lawsuit claims the government did not go through the “notice and comment” process that is required; the mandate exceeds the government’s authority; that the mandate is “arbitrary and capricious”; and it is contrary to law — specifically that it violates certain provisions in the Social Security Act, among other legal issues.

There is some overlap with the Missouri lawsuit, which alleges the mandate is agency overreach; Congressional authorization and a closer look at the “economic and political significance” of the mandate is needed, the ruling said, along with a comment period before implementation.

Another court considering a lawsuit challenging the mandate, this time in Texas, has not yet issued a ruling.