By Brock Malcolm, Esq.

Like you, Bowles Rice has been constantly monitoring the latest developments regarding the impending deadlines for compliance with the Centers for Medicare & Medicaid Services (CMS) Vaccine Mandate applicable to health care workers.

As discussed in the November 16 edition of the Bowles Rice West Virginia Health Care Law Blog, the State of West Virginia, by and through its Attorney General, joined with 11 other states in filing a lawsuit against the federal government on November 15, 2021, in the Western District of Louisiana. The expressed purpose of this suit was to block the mandate from CMS requiring COVID‐19 vaccination for eligible staff at healthcare facilities participating in Medicare and Medicaid programs. The other states joining West Virginia in this legal action were Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, and Utah; however, similar lawsuits have been filed by other states in different venues across the country.

To be compliant with the CMS Vaccine Mandate, CMS‐participating health care providers have been scrambling to implement vaccination policies that would require employees to report their current vaccination status no later than December 5, 2021. Under such policies, employees electing to receive the Pfizer or Moderna vaccines would have until December 5 to provide proof of vaccination for their first dose and would have until January 4, 2022, to provide proof of the second dose. Employees who choose to receive the single‐dose Johnson and Johnson vaccine (also known as the Janssen vaccine) would have until December 5, 2021, to submit proof of their vaccination. Simultaneously, health care employers have been creating and distributing exemption request forms for those employees seeking to claim a medical or religious exemption from the mandated vaccinations.

On Tuesday, November 30, however, U.S. District Judge Terry A. Doughty issued a nationwide injunction that puts plans for CMS's implementation of its mandate on hold for the foreseeable future. In its Memorandum Ruling, the Louisiana District Court held that the “Government Defendants do not have the authority to implement the CMS Mandate” and granted the plaintiff states' motion for preliminary injunction, restraining CMS from implementing its planned mandate. In his explanation, Judge Doughty argued the need to “safeguard the separation of powers set forth in the Constitution, stating that President Biden does not have the authority to issue such a mandate through a governmental agency but rather that such actions must be undertaken through an Act of Congress.” That said, however, Judge Doughty added, “It is not clear that even an Act of Congress mandating a vaccination would be constitutional. Certainly, CMS does not have this authority by a general authorization statute.”

So, what now? Obviously, the Biden Administration is expected to appeal this ruling to the Fifth Circuit Court of Appeals, and the case will likely end up in the U.S. Supreme Court for a final resolution of the mandate's legal issues. For now, no action is required prior to December 6, 2021 to remain in good standing as a participant in the Medicare and Medicaid programs. As this case and others, such the OSHA Vaccine Mandate lawsuit, make their way through the courts, Bowles Rice will continue to monitor and assist its clients in having the most up‐to‐date information and advice.

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