Ongoing Litigation Leaves Half of States Covered by Preliminary Injunctions Against CMS Vaccine Rule

On Thursday, the Biden administration petitioned the U.S. Supreme Court to allow the rule promulgated by the Centers for Medicare & Medicaid (CMS) requiring certain covered facilities to mandate COVID-19 vaccines of their health care workers to go into effect nationwide. The U.S. Solicitor General filed a motion asking the Supreme Court to put on hold the lower federal court decisions that are currently blocking enforcement and implementation of the CMS vaccine rule. According to the Biden administration, implementation of this Omnibus COVID-19 Health Care Staff Rule (CMS IFR) is necessary to save thousands of lives during an anticipated COVID surge this winter.

The appeal to the Supreme Court is the latest development in an active week in litigation over the CMS IFR. A timeline of the relevant federal court rulings is below:

• On November 19, the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction preventing CMS from implementing and enforcing the CMS IFR. The Eastern District of Missouri’s decision applies to the ten states that brought the challenge:  Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
• On November 30, the U.S. District Court for the Western District of Louisiana issued a nationwide preliminary injunction against the CMS IFR.
• On December 13, the U.S. Court of Appeals for the Eighth Circuit left the Eastern District of Missouri’s preliminary injunction on the CMS IFR in place. On appeal, the Eighth Circuit denied the Biden administration’s request to stay the preliminary injunction and kept it in place for the 10 challenging states.
• On December 15, the U.S. Court of Appeals for the Fifth Circuit narrowed the scope of the Western District of Louisiana’s nationwide preliminary injunction on the CMS IFR. The Fifth Circuit’s decision limits the preliminary injunction to only cover the fourteen challenging states of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio.
• On December 15, hours after the Fifth Circuit Court’s decision, the U.S. District Court for the Northern District of Texas issued its own preliminary injunction against the CMS IFR to cover the state of Texas.

As a result of the Fifth Circuit’s decision and the Northern District of Texas’s decision, the country is now split exactly down the middle, with CMS able to implement and enforce the CMS IFR in 25 states. The other 25 states are covered by a federal court’s preliminary injunction. These states are: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming, Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, and Texas.

At this point in time, CMS has yet to issue further guidance. ANCOR will continue to monitor these developments and provide updates on the CMS IFR.