Federal Judge Pauses CMS Vaccine Mandate in 10 States

Updated Dec. 1, 2021, at 3:22 p.m. to include statement from NAHC.

JEFFERSON CITY, Mo. (November 30, 2021)—A judge has blocked enforcement of the Biden administration’s COVID-19 vaccine mandate for health care workers in 10 rural states pending a trial over whether the federal government exceeded its authority in issuing the nationwide requirement.

Matthew T. Schelp, U.S. district judge for the Eastern District of Missouri, granted the preliminary injunction Monday in the wake of a Nov. 10 lawsuit brought by the attorneys general of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. 14 additional states have also filed suit, which has yet to be settled.

The Centers for Medicare & Medicaid Services (CMS) announced early November that health care staff—including those in home health, hospice and home infusion—would need to be partially vaccinated by Dec. 5 and fully vaccinated by Jan. 4, 2022. Durable medical equipment providers were not expressly listed in the mandate. (Read HomeCare’s coverage of the rule here.)

CMS in a statement said it was reviewing the ruling, adding that unvaccinated health care staff pose a threat to patient safety.

National Association for Home Care & Hospice (NAHC) President William A. Dombi said in a statement, “We are advising NAHC members to continue to undertake, in good faith, all necessary measures to be compliant with Phase 1 and Phase 2 requirements of the rule except for any steps that would have been taken with staff that are not vaccinated or subject to an exception. We further advise providers to document any barriers to compliance.

With the fate of the various on-going U.S. District Court lawsuits uncertain, we believe it is incumbent upon providers to operate in good faith throughout to achieve compliance. Ultimately, we anticipate that the legal issues will either be subject to a higher court’s ruling, or the administration will take actions to modify its rules. It remains possible that the District Court rulings will be reversed and that the original compliance deadlines will be held in place. While that outcome is not highly likely, a good faith compliance effort will be the best protection a provider can have against any enforcement action.

Should the administration take steps to directly suspend implementation and enforcement of the rule pending the outcome of the litigation, as has occurred with the OSHA ETS, providers can then suspend efforts to comply with the CMS/HHS rule. We encourage the administration to take such a step to provide needed clarity to all health providers subject to the rule.
 
We remain very concerned that CMS has issued no guidance on how providers should address any workforce shortages triggered by the rule in event that such leads to insufficient staff to care for existing patients or any new patient admissions,” the statement concludes.