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U.S. Appeals Court Limits Scope of Halt of CMS Vaccine Mandate

The U.S. Court of Appels has limited the scope of a prior injunction that halted CMS’s Vaccine Mandate nationwide and, instead, restricted the injunction only to those states that are party to the case.  Consequently, CMS may proceed in enforcing its mandate in 26 states that are not party to either lawsuit on this issue.  The 5th Circuit’s decision follows  the November 30, 2021, ruling by the U.S. District Court for the Western District of Louisiana, which granted a nationwide preliminary injunction enjoining the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services (“CMS”) from implementing the vaccine mandate issued by CMS in early November. That mandate requires employees of Medicare and Medicaid certified healthcare facilities to have received the first dose of the COVID-19 vaccine by December 6, 2021, and the second dose by January 4, 2022. The order was entered in a lawsuit filed by a coalition of 14 states challenging the CMS vaccine mandate.

The court found that a nationwide injunction was necessary due to the need for uniformity. Therefore, the scope of the injunction applied nationwide, except for the states of Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, and South Dakota, since those ten states were already under a preliminary injunction order dated November 29, 2021, issued by the Eastern District of Missouri in a separate lawsuit challenging the CMS vaccine mandate. On December 2, 2021, in accordance with these decisions, CMS issued a memorandum addressed to State Survey Agency Directors, advising them that CMS “has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation,” and that, while the preliminary injunctions are in effect, “surveyors must not survey providers for compliance with the requirements of the Interim Final Rule.”

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