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U.S. Supreme Court Reverses Halt of CMS Vaccine Mandate

By Sean D. Hurley

On January 13, 2022, the U.S. Supreme Court issued a Per Curiam decision reversing the stays of CMS’s vaccine mandate for healthcare workers that were previously ordered by the U.S. District Courts for the Western District of Louisiana and the Eastern District of Missouri, and allowing CMS to enforce its mandate nationwide. Those lower courts’ rulings were appealed to the U.S. Courts of Appeal for the Fifth and Eight Circuits, respectively. The Fifth Circuit limited the scope of the nationwide stay ordered by the Louisiana court to the 14 states that were parties to that case, while the Eighth Circuit upheld the Missouri court’s stay, which applied to the ten states involved in that case. Accordingly, upon the issuance of the Appeals Courts’ rulings, CMS was authorized to resume implementation and enforcement of its vaccine mandate for healthcare workers in the 26 states not subject to a preliminary injunction. CMS appealed the stays to the U.S. Supreme Court, which heard argument on January 7, 2022.

In its ruling, the Supreme Court agreed with CMS that the Interim Final Rule falls within the authority conferred upon CMS by Congress. Specifically, Congress has authorized CMS by statute to impose conditions of the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” The Court found that the Interim Final Rule “fits neatly within the language of the statute,” noting further that “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.” In support of its decision, the Court also noted that “healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare,” and CMS “routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves.”

In further support of its decision, the Court discussed the fact that “[v]accination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella.” In issuing its Interim Final Rule, CMS explained that these pre-existing state requirements are a major reason the agency has not previously adopted vaccine mandates as a condition of participation in the Medicare and Medicaid programs. The Court noted further that healthcare workers and public health organizations “overwhelmingly” support CMS’ vaccine mandate.

In addition to finding that CMS acted within its statutory authority, the Court found the other arguments in favor of staying the vaccine mandate to be unavailing. Specifically, the Court found that the Interim Final Rule was not arbitrary and capricious and that CMS proffered sufficient justification for circumventing the traditional notice and comment procedures for administrative rulemaking. Ultimately, the Court found that “such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” Justices Thomas, Alito, Gorsuch, and Barrett dissented from the Court’s ruling.

In light of the Court’s ruling, CMS may proceed with implementing and enforcing the Interim Final Rule nationwide, pending the final resolution of the Western District of Louisiana and Eastern District of Missouri cases. In the meantime, should you have questions, please contact Michael A. Airdo at 312-506-4480 or [email protected] or Sean Hurley at 312-506-4455 or [email protected].