Constangy.com News & Analysis
CMS issues guidance for health care employers in 24 states where mandate had been blocked
1.21.22
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The Centers for Medicare & Medicaid Services has
issued guidance and separate compliance deadlines for 24 of the 25 states in which the CMS vaccination mandate was enjoined before last week’s Supreme Court decision lifting the injunctions.
Apart from the deadlines, the new CMS guidance is substantively the same as its December 28 guidance, which applies to covered facilities in states where the mandate had never been enjoined.
The CMS mandate was preliminarily enjoined in 24 states as a result of challenges brought in federal courts in Missouri and Louisiana. The government asked two U.S. Courts of Appeal (Eighth Circuit in the Missouri case, and Fifth Circuit in the Louisiana case) to lift the injunctions. Both appellate courts denied the government’s motions, and the government filed an emergency motion with the U.S. Supreme Court.
On January 13, the U.S. Supreme Court granted the government’s motion and stayed the injunctions in the Missouri and Louisiana cases. (Another case, Texas v. Becerra, in which a preliminary injunction had been issued applying solely in the State of Texas, was not before the Supreme Court.)
The new CMS guidance applies to the 24 states in the Missouri and Louisiana cases that were before the Court, and -- as will be discussed below -- is likely to soon apply in Texas as well.
States covered by the new guidance
The latest CMS guidance, which was issued on Friday, applies in the states of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming.
The CMS guidance expressly states that it does not apply in Texas because the Texas v. Becerra injunction was still in effect when the guidance was issued. However, after the Supreme Court decision, the State of Texas filed a motion in the federal district court where Texas v. Becerra was pending, and asked the court to dismiss the case. The case was dismissed on Wednesday, and the dismissal also ends the Texas injunction. Accordingly, the CMS is likely to amend its new guidance to add Texas. If so, covered facilities in Texas will be subject to the same deadlines that apply to the other 24 “injunction states.”.......Read More>>
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