Supreme Court Upholds CMS COVID-19 Vaccine Mandate

This is an update to our January 6, 2022 alert on the CMS vaccine mandate.

On January 13, 2022, the Supreme Court granted the Government’s emergency applications to stay the Missouri[1] and Louisiana[2] district court injunctions of the Centers for Medicare & Medicaid Services (CMS) interim final rule (IFR) requiring health care workers at facilities enrolled with Medicare and Medicaid to be fully vaccinated as a condition of participation. The decision was per curiam with four dissenting Justices: Justices Thomas, Alito, Gorsuch, and Coney Barrett. The Missouri and Louisiana injunctions had halted implementation of the IFR in 24 states, in addition to a third injunction which has also halted implementation in Texas.[3] More detailed explanations of the impact on health care providers and the Supreme Court’s rationale are below.

Impact on Health Care Providers

Following the Supreme Court’s opinion, CMS Administrator Chiquita Brooks-LaSure released a statementthat the opinion would “enable [CMS] to fully implement [the IFR].” In light of the evolving litigation, CMS initially announced that it had suspended its enforcement activities pending future developments. But,on December 28, 2021, the agency announced that it would begin enforcement of the vaccine mandate in facilities located in the 25 states and territories not subject to the judicial injunctions and provided modified compliance dates. 

Now, given Administrator Brooks LaSure’s statement, it appears that CMS intends to enforce those compliance deadlines in all states. Check out our recent client alert for more detail on the compliance timeline for covered health care facilities. In summary:

Phase 1: By January 27, 2022, all health care facilities subject to the IFR must:

• Develop and implement policies and procedures for “ensuring all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19;” and
• Demonstrate that 100% of facility staff have received at least one dose of a COVID-19 vaccination, have been granted or are presently seeking a qualifying exemption, or must delay vaccination as recommended by the CDC.

Phase 2: By February 28, 2022, all health care facilities subject to the IFR must:

• Continue implementing COVID-19 vaccination policies; and
• Demonstrate that 100% of facility staff have received all necessary doses to complete a COVID-19 vaccination series, have been granted or are presently seeking a qualifying exemption, or must delay vaccination as recommended by the CDC.

Phase 3:Facilities failing to maintain 100% compliance by March 28, 2022 may be subject to additional enforcement action.

Supreme Court Rationale for Upholding the IFR

The Supreme Court’s rationale is notable in light of the contrasting decision it reached with respect to the OSHA ETS. Please see our client alert on the OSHA decision for more information. For health care providers and other health care entities that must ensure compliance with CMS Conditions of Participation, the Supreme Court decision is important. The Supreme Court explored the scope of CMS’s authority to impose requirements on providers through the use of conditions of participation.  While the COVID-19 pandemic is an unusual occurrence, the decision provides important insight into the scope of CMS’s ability to protect federal healthcare program beneficiaries. The Supreme Court based its decision to grant the Government’s request for a stay of injunction on three main arguments:

(1) The IFR falls within the authority granted by Congress to the Secretary of the Department of Health and Human Services, Xavier Becerra.

The Supreme Court agreed with the Government’s contention that the Secretary is authorized to impose upon healthcare facilities as conditions of participation requirements necessary to protect the health and safety of Medicare and Medicaid beneficiaries. The Court reasoned that such authority is evidenced by the language of 42 U.S.C. § 1395 and historical exercise of that authority to impose conditions of participation requirements via regulation.[4] Mandating the COVID-19 vaccine is, as the Supreme Court noted, an example of a measure to protect the health and safety of Medicare and Medicaid beneficiaries that the Secretary is authorized to impose.

The dissenting Justices narrowly interpret the authorities granted to the Secretary to permit only the imposition of technical administrative rules relating to Medicare and Medicaid. But, as the rest of the Supreme Court noted, this narrow interpretation would essentially preclude the imposition of any conditions of participation.

(2) The Secretary followed proper procedures in promulgating the IFR.

The Supreme Court found that the IFR is not arbitrary and capricious rulemaking because the Secretary examined the relevant data and articulated a satisfactory explanation for his decision to impose the specific requirements of the IFR, as required by Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.[5]

Additionally, the Supreme Court concluded that the Secretary had good cause to delay notice and comment rulemaking procedures for the IFR, citing an impending cold and flu season that could lead to significant COVID-19 infections, hospitalizations, and deaths without more widespread vaccination. The demonstration of  good cause also meant that the Secretary was not required to consult with State agencies or prepare a regulatory impact analysis before issuing the IFR.

(3) The IFR does not violate the statutory prohibition against government supervision or control over the practice of medicine or the selection or tenure of health care facility employees.

Finally, the Court determined that the CMS vaccine mandate did not violate 42 U.S.C. § 1395, which prohibits Federal officers and employees from exercising any supervision or control over the practice of medicine, the manner in which medical services are provided, or the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services. Although opponents of the IFR argued that the vaccine mandate ran afoul of this statutory prohibition, the Supreme Court explained that such a broad reading of the statute would nullify all preexisting conditions of participation meant to protect the wellbeing of Medicare and Medicaid beneficiaries.

The stays of injunction in both the Missouri and Louisiana cases are pending disposition of the Government’s appeals in the Eighth and Fifth Circuits, respectively. We will continue to follow these cases and CMS Guidance and provide timely updates. Based on CMS’s statement following the Supreme Court’s decision, it appears the agency is not waiting for the Circuit Courts to act before moving forward with enforcement of the IFR.