Within days after the federal government’s adoption of a vaccine mandate for most hospitals and other participants in Medicare and Medicaid, the first court challenge has surfaced. On November 10, 2021, a coalition of 10 State Attorneys General filed suit against the federal government seeking to invalidate the interim final rule (“IFR”) issued on November 5 by the Centers for Medicare and Medicaid Services (“CMS”). The vaccine IFR, which generally applies to all Medicare- and Medicaid-participating facilities, requires that such facilities have a process or policy in place to ensure that all staff are vaccinated against COVID-19. The IFR, which we detailed here, requires all clinical and non-clinical personnel working within a Medicare and Medicaid participating facility (and sometimes those who work only offsite) to have received at least the first dose of a COVID-19 vaccine by December 5, 2021, and to complete the vaccine course by January 4, 2022.
The Lawsuit
In the action, filed in the U.S. District Court for the Eastern District of Missouri, the Republican Attorneys General brought nine counts for relief. They allege various procedural and substantive violations of the Administrative Procedures Act, the U.S. Constitution, the Social Security Act and the Anti-Commandeering Doctrine. The Plaintiffs seek declarations that the IFR violates those laws and request that the court preliminarily and permanently enjoin CMS from imposing the IFR. In a preview of a motion which seems all but certain, the Plaintiffs state:
“The CMS vaccine mandate threatens to exacerbate already devastating shortages in healthcare staffing by forcing small rural hospitals to terminate their unvaccinated workers. That, in turn, will compel those hospitals to close certain divisions, cancel certain services, or shutter altogether. These dire consequences stretch across rural America, and their collective force required CMS to prepare a regulatory impact analysis.”
Under a local court rule, the matter has been assigned only to a United States Magistrate Judge, in this case, the Hon. Shirley P. Mensah (whose appointment is made by federal district judges in the court). When the plaintiffs file a motion for a preliminary injunction, the motion will be assigned under local rule to a federal district judge (whose appointments are made by U.S. presidents). The federal district court bench in the Eastern District of Missouri represents a fairly even split of judges appointed by Republican and Democratic presidents.
Different from the OSHA Rule and its Legal Challenges
The Missouri federal court lawsuit challenges the CMS vaccine rule, not the “vaccine-or-test” rule which was issued by the Occupational Safety and Health Administration (“OSHA”), and which applies to employers with 100 or more employees. We reported on the OSHA rule here and on its prompt legal challenges here. Unlike the challenge to the OSHA rule, which has resulted in a temporary stay of that rule in the Fifth Circuit, the CMS challenge in Missouri was initiated in district court and any appeals from that decision will end up in the U.S. Court of Appeals for the Eighth Circuit, which is composed of judges nearly all of whom were appointed by Republican presidents.
Practical Takeaways
Many hospitals and other CMS-participating facilities across the country have already implemented various levels of vaccine requirements, while some have not adopted any vaccine mandates at all. They will all watch with great interest how this and the OSHA legal challenges develop. If the CMS IFR is invalidated or otherwise stayed prior to December 5, 2021, those covered facilities that have not already adopted vaccine mandates may be allowed a testing alternative to the vaccine through their obligations under the OSHA rule (that is, if the OSHA rule survives). If the OSHA rule is upended but the CMS rule passes the legal challenge, hospitals and other CMS-participating facilities will have to maintain or implement a strict vaccine mandate. There are other possible results too numerous to speculate on or describe, but we will keep watching.
For more information on the vaccine requirements and the evolving litigation related to them, please contact:
- Jon Rabin at (248) 457-7835 or jrabin@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
