For the third time in as many weeks, providers were handed conflicting decisions from two different federal appellate courts: the Fifth Circuit reversed the nationwide ban except in the 14 states named in the District litigation, whereas the Eight Circuit upheld the ban in 10 states. As a result of this most recent flurry of litigation, CMS’ mandate is temporarily blocked in 24 states: Alabama, Alaska, Arkansas, Arizona, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Ohio, Oklahoma, South Carolina, Utah and West Virginia and Wyoming. The other 26 states remain subject to the mandate, which requires full vaccination of healthcare workers by January 4, 2022, although CMS self-imposed suspension of the implementation and enforcement of the mandate in even those states. The conflicting, overlapping Court orders, coupled with CMS’ own indecision on enforcement of the mandate, leaves providers in a tenuous position, especially national and even regional providers whose facilities span states affected by the conflicting decisions.

Given the complexity of the matter, a brief review of the relevant history may be helpful:

• Nov. 4: the Centers for Medicaid and Medicare (“CMS”) advised that all healthcare workers in any setting accepting Medicaid or Medicare would be required to be fully vaccinated by January 4, 2022. Several lawsuits immediately followed.
• Nov. 23: the U.S. District Court of Northern District of Florida refuses to place a temporary restraining issue against the CMS’ ban.
• Nov. 29: the US District Court in Missouri grants the first injunction against CMS’ rule in the 10 states that brought the challenge - Missouri, which was subsequently joined by Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
• Nov. 30: the US District Court for Western Louisiana issues a nationwide injunction against the mandate, expanding the temporary injunction from the 14 states that requested it (Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia) to not just the 14 states before it but also to all other states (except the 10 states in the Missouri case)
• Dec. 2: CMS publishes a memorandum suspending enforcement of all activities related to the implementation and enforcement of its Nov. 4 mandate.

• Dec 3: the US District Court for the Northern District of Texas stays any decision on the litigation filed in its Court given the nationwide ban and anticipated appeal therefrom
• Dec 6: the original CMS deadline for first round of vaccination of healthcare workers passes.
• Dec 6: the 11th Circuit of Appeals upholds the District Court of Northern Florida’s decision refusing to issue an injunction against the mandate
• Dec. 13: the 8th Circuit Court of Appeals denies the request to lift the Missouri District’s Court injunction in the 10 named Plaintiff states - Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. Accordingly, the mandate is legally banned in those states.
• Dec 15: the 5th Circuit Order upholds the District Court of Western Louisiana’s injunction as applied to the 14 states named as Plaintiffs (Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia), but overturns the District Court’s injunction in the remaining 40 states.
• Jan 4: the original CMS deadline for full vaccination of healthcare workers is quickly approaching

Given the conflict between the Fifth, Eight, and Eleventh Circuit decisions, the likelihood of a Supreme Court involvement is high. However, while appeals and the ultimate Supreme Court decision remains pending and unlikely to occur until after the January 4, 2022 compliance deadline, providers are left without much guidance in the meantime. Stotler Hayes has previously advised providers to continue to develop internal vaccine policies and undertake all steps necessary to ensure policies and procedures with both the mandate and the injunctions are ready to effectuate in early January. We are also encouraging providers to submit formal comments to CMS detailing the potential impact of the mandate on your facility’s staffing and resident care using the detailed instructions on our blog post, here.