The net impact of two federal court decisions issued the last two days in November is a nationwide preliminary injunction restricting the Centers for Medicare and Medicaid Services (“CMS”) from temporarily implementing and enforcing its vaccine mandate (“Mandate”). At this juncture, covered providers and suppliers who receive Medicare or Medicaid funds, however, may be too frazzled to properly rejoice.
On November 29, the United States District Court for the Eastern District of Missouri issued a preliminary injunction for ten states who filed a complaint challenging the Mandate: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire. The Court, in part, reasoned: “In conclusion, Plaintiffs likely can show the CMS Mandate is arbitrary and capricious because the evidence does not show a rational connection to support implementing the vaccine mandate, the mandate's broad scope, the unreasonable rejection of alternatives to vaccination, CMS's inadequate explanation for its change in course, and its failure to consider or properly weigh relevant interests.” (Opinion, at p. 23).
The next day, November 30, the United States District Court for the Western District of Louisiana also issued an almost-nationwide preliminary injunction, excluding only the states covered by the above-referenced federal court Order issued on November 29. The Court explained the nationwide injunction was necessary based on the nationwide scope of the CMS Mandate and the “need for uniformity.” (Opinion, at p. 33).
On December 1, both Courts separately rejected President Biden's Administration's request to stay the injunction Orders pending appeal. The fate of these decisions (and the CMS Mandate) now will be addressed in the appellate courts (the Eighth Circuit for the Missouri decision and the Fifth Circuit for the Louisiana decision) and, most likely, in the Supreme Court of the United States.
Because the future of the CMS Mandate is uncertain, covered providers and suppliers should keep apprised of the status of the legal challenges and carefully determine their next steps with legal counsel.
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