Supreme Court Lifts Injunction Against CMS Vaccine Mandate

Many commentators called this one correctly.  Today, the Supreme Court lifted the injunction that had blocked the Centers for Medicare & Medicaid Services (CMS) from enforcing the November 5, 2021 Interim Final Rule (IFR) requiring health care entities subject to the rule to ensure their workforce (including contractors) were either vaccinated or had an exemption.  With this decision, those states now join the 27 other states where CMS is preparing to enforce the IFR.  In overturning the injunction, the Court stated:

“[T]he Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves. See, e.g., §§482.42(c) (2)(iv) (requiring training of “hospital personnel and staff ” on “infection prevention and control guidelines”), 483.60(a)(1)(ii) (qualified dieticians must have completed at least 900 hours of supervised practice), 482.26(b)–(c) (specifying personnel authorized to use radiologic equipment). And the Secretary has always justified these sorts of requirements by citing his authorities to protect patient health and safety. See, e.g., §§482.1(a)(1)(ii), 483.1(a)(1)(ii), 416.1(a)(1). As these examples illustrate, the Secretary’s role in administering Medicare and Medicaid goes far beyond that of a mere bookkeeper.”

What does this mean for health care entities subject to the IFR?  On December 28, 2021, CMS issued additional guidance regarding the enforcement of the vaccine mandate in the states not subject to the appeal to the Supreme Court.  CMS provided affected health care entities in those states with 30 days from the date of the publication to have all workforce vaccinated with the first dose or have an exemption request pending with the employer.  Health care entities subject to today’s ruling likely will get 30 days from the date of any CMS announcement to implement the requirements of the IFR.  Assuming CMS will act very quickly, we believe health care entities in the remaining 25 states should expect to be required to comply by February 13, 2022, or possibly sooner if CMS decides to shorten the deadline.