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12/05/2021 | News release | Distributed by Public on 12/05/2021 11:56

Blog: Updates on Legal Challenges to CMS Vaccine Mandate Rule

Blog: Updates on Legal Challenges to CMS Vaccine Mandate Rule

Dec 02, 2021 - 05:30 PMby
Sean Marotta

To help hospitals and health system leaders stay up-to-date on all of the legal developments related to vaccine mandates, the AHA has developed a blog authored by Sean Marotta, a partner at Hogan Lovells and outside counsel for the AHA. Marotta will provide regular updates on this page as new developments occur.

December 1, 2021 at 2:00 p.m. ET

The State of Play on Legal Challenges to Mandatory Vaccines and What They Could Mean for the Future of the Mandates

It's been a busy time for challenges to the Centers for Medicare & Medicaid Services and Occupational Safety & Health Administration vaccine mandates. (The OSHA mandate is a "vaccinate-or-test" mandate, but I'll shorten it to "vaccine mandate.")

Here's the bottom line: Both the CMS and OSHA vaccine mandates are on hold nationwide while the federal government asks appellate courts to let them go back into effect. But unless something unusual happens, the mandates will remain on hold past the initial December compliance dates facing facilities and employers.

Let's start with the challenges to the CMS mandate. States brought challenges to the mandate in district courts in Florida, Missouri, Louisiana, and Texas and sought preliminary injunctions to block the mandate from going into effect. The Florida district court acted first and denied Florida's request for a preliminary injunction. Florida has appealed to the U.S. Court of Appeals for the Eleventh Circuit and has sought an injunction pending appeal from the appeals court.

Then came Missouri. The Missouri district court Nov. 29 entered a preliminary injunction enjoining the mandate as to facilities in the 10 states that are plaintiffs in that case: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. The federal government has appealed the Missouri district court's decision to the U.S. Court of Appeals for the Eighth Circuit and has asked the appeals court to stay the district court's preliminary injunction pending appeal.

Next, there was the Louisiana district court. On Nov. 30 it entered a preliminary injunction enjoining the mandate, this time nationwide except for the states covered by the Missouri district court's injunction. The federal government has not yet appealed the Louisiana district court's decision, but we expect it to do so soon and to ask the U.S. Court of Appeals for the Fifth Circuit to stay the preliminary injunction pending appeal.

And then there's Texas. The district court has scheduled oral argument on Texas' motion for a preliminary injunction for Dec. 2 and will rule soon after. But the practical importance of the court's decision is minimal because of the preliminary injunctions already imposed by the Louisiana and Missouri district court.

So what does all this mean for the future of the mandates? The CMS vaccine mandate is enjoined, nationwide. The federal government is asking or soon will be asking the courts of appeals to lift those stays to allow the mandate to go into effect, but that will take time to brief and decide. It is therefore almost certain that the first Dec. 6 compliance date will pass with the mandate still enjoined. And with further appeals to the U.S. Supreme Court a certainty after the courts of appeals rule, we may not know the ultimate fate of the CMS vaccine mandate pending appeal until Christmas or even the end of 2021.

Then there's the OSHA vaccine mandate. The over 40 lawsuits challenging the mandate have been consolidated in the U.S. Court of Appeals for the Sixth Circuit. Before the consolidation, the Fifth Circuit stayed the OSHA mandate nationwide and the federal government has asked the Sixth Circuit to lift the stay. But the Sixth Circuit set a fairly relaxed briefing schedule for the federal government's motion, with briefing not complete until Dec. 10.

The federal government has therefore asked the Sixth Circuit to accelerate the briefing schedule on the motion to lift the stay, and the challengers have predictably opposed. The challengers also have asked the entire 16-judge court to hear the case rather than the usual three-judge panel, a move called "initial rehearing en banc." The federal government has opposed, and the motion is now before the Court for decision.

Like the CMS mandate, it is extremely unlikely that the Sixth Circuit will act on the motion to lift the Fifth Circuit's stay before the initial Dec. 6 compliance date. And with further appeals to the U.S. Supreme Court likely, the final fate of the OSHA mandate while appeals play out may not be decided until Christmas or the end of the year.

But we seem to be getting new rulings almost every day, so follow us here for the latest updates.

December 2, 2021 at 3:30 p.m. ET

Happy Thursday! We have three small updates in the pending challenges to the CMS vaccine mandate.

First, the federal government, as expected, has appealed the Louisiana district court's almost-nationwide injunction to the U.S. Court of Appeals to the Fifth Circuit in New Orleans. The federal government soon will ask the Fifth Circuit to stay the district court's preliminary injunction pending appeal, but has not done so yet.

Second, the U.S. Court of Appeals for the Eighth Circuit, which is hearing the federal government's appeal from the Missouri district court's preliminary injunction, has asked for a response to the federal government's stay motion by Dec. 8. That means the preliminary injunction will remain in effect past the initial Dec. 6 compliance date for the vaccine mandate.

Finally, the U.S. Court of Appeals for the Eleventh Circuit, which is hearing Florida's appeal from the Florida district court's order denying a preliminary injunction, asked for a response to Florida's motion for an injunction pending appeal from the federal government by tomorrow, Dec. 3. But the Eleventh Circuit appeal is of limited practical import because the Louisiana district court's almost-nationwide injunction covers Florida.

All in all, the CMS vaccine-mandate challenges are gearing up in the courts of appeals. But we still remain some time away from a final word on the vaccine mandate's fate while challenges take place.

December 2, 2021 at 5:30 p.m. ET

The Centers for Medicare & Medicaid Services today issued a memorandum confirming that it will not enforce its vaccine mandate while it remains enjoined by the Missouri and Louisiana district courts. The memorandum states that CMS has "suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation." The memorandum further directs that "while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the" mandate. But the memorandum does not state what CMS would do when and if the preliminary injunctions are stayed, such as setting new compliance dates.

December 5, 2021 at 12:48 p.m. ET

First, we have the federal government's Fifth Circuit appeal of the Louisiana district court's order enjoining the CMS mandate almost nationwide. The government, as expected, moved to stay the district court's injunction pending appeal. Louisiana filed its opposition soon after, and we expect a reply from the federal government shortly, which will tee up the motion for Fifth Circuit action.

Next is the Texas district court challenge brought by the State of Texas. After holding oral argument, the district court agreed to stay the lawsuit because the CMS mandate is already stayed in Texas as a result of the Louisiana district court's almost-nationwide injunction. So unless the Fifth Circuit stays the Louisiana district court's injunction, this case will remain on hold.

Finally, there is the consolidated challenges to the OSHA mandate in the Sixth Circuit. The appeals court denied the federal government's motion to accelerate the briefing schedule for its motion to lift the Fifth Circuit's nationwide stay. Oppositions to the federal government's motion to lift the stay remain due Dec. 7, and the federal government's reply is due Dec. 10. It is unclear how quickly the Sixth Circuit will rule following the completion of briefing, but the OSHA mandate will remain stayed at least through Dec. 10. The Sixth Circuit also denied the federal government's motion to a set an accelerated briefing schedule for the merits appeal, suggesting that the court is in no rush to decide this case on the merits - or at least not yet.

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