On December 28, 2021, the Centers for Medicare & Medicaid Services (“CMS”) issued updated guidance and survey procedures to State Survey Agency Directors in 26 states where implementation and enforcement of CMS’s vaccine mandate has not been enjoined by the courts. As previously reported, on December 15, 2021, the U.S. Court of Appeals for the Fifth Circuit limited the scope of a prior injunction that halted CMS’s vaccine mandate nationwide and, instead, restricted the injunction only to the 14 states that are party to that case. Meanwhile, on December 13, 2021, the U.S. Court of Appeals for the Eighth Circuit entered an order upholding a preliminary injunction entered by the Eastern District of Missouri, which applies to the ten states involved in that lawsuit. Consequently, CMS may proceed in enforcing its mandate in the 26 states that are not party to either lawsuit on this issue: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin. CMS has appealed those decisions to the U.S. Supreme Court, with argument scheduled for January 7, 2022.
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