CMS Mandate: At the beginning of December we informed you that a Federal Court in Louisiana issued a nationwide stay on enforcement of the Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccination mandate. During the stay period, CMS instructed its state survey teams suspend efforts related to monitoring compliance with the vaccine mandate.

On December 15, the Fifth Circuit limited the scope of the injunction granted by the Louisiana Court. The Fifth Circuit allowed the injunction to remain in the 14 “Plaintiff States” (the states which were parties to the litigation) but struck down the stay for other states. The full order can be found here.

Who has to comply as of now?

• States who are a party to the Louisiana case do not need to comply: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio.
• States who are a party to the Missouri case do not need to comply: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire.
• The remaining 26 states must again comply with the CMS mandate: 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.

This back and forth has put some providers in a tough spot, as the Phase I deadline, which contained most of the “hard work” of compliance, passed 10 days ago, on December 6, 2021. Additionally, some providers may operate in more than one state which may present complicated compliance issues for the time being.

Hopefully CMS will take into consideration the complexities of applying these rules to some providers and not others and have some forgiveness because of the “stop and go” nature of these regulations and the very short timeframe for compliance. It is critical for providers to know when the survey team will be showing up ready to examine information regarding compliance with the mandate and potentially cite them for noncompliance if they do not meet all requirements of the mandate.  That being said, CMS is quite confident in its authority to require certified providers to comply with the vaccine mandate.

OSHA ETS – Also on December 15, the Sixth Circuit denied the petition for en banc review. This means that the challenges to the OSHA ETS will be heard by a three-judge panel of the court instead of the entirety of judges in the Sixth Circuit. Who will make up the three-judge panel has not been announced yet.

The full order, including a concurrence from Judge Moore and a dissent from Judge Sutton, can be found here.