The Supreme Court Lifts Stay on Healthcare Vaccination Mandate

By: Emily H. Lineweaver

On January 13, 2022, the Supreme Court of the United States lifted the stay on the Centers for Medicare & Medicaid Services (CMS) Omnibus Health Care Staff Vaccination rule that we previously reported here.  As a result, healthcare providers in the 24 states covered by the decision, including Kentucky and Indiana, must now comply with the rule, which requires COVID-19 vaccination of healthcare workers in facilities that participate in Medicare and Medicaid. 

In finding that CMS has the authority to issue such a rule, the Supreme Court agreed with the Government that Congress authorized the Secretary of Health and Human Services (HHS) Xavier Becerra to “impose conditions on the receipt of Medicaid and Medicare funds” that are necessary and in the interest of protecting the health and safety of individuals who are furnished healthcare services: “The Secretary of Health and Human Services determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. He accordingly concluded that a vaccine mandate is ‘necessary to promote and protect patient health and safety’ in the face of the ongoing pandemic. The rule fits neatly within the language of the statute.”  The Court also found that the rule was not arbitrary or capricious and that the Secretary did not fail to consider that the rule might cause staffing shortages, including in rural areas. The Court concluded that the Secretary “need not prepare a regulatory impact analysis discussing a rule’s effect on small rural hospitals when he acts through an interim final rule; that requirement applies only where the Secretary proceeds on the basis of a ‘notice of proposed rulemaking,’ followed by a ‘final version of [the] rule.’”

Justice Thomas and Justice Alito both authored dissents, with Justice Gorsuch and Justice Barret joining.  Justice Thomas argued that the Government did not establish it had the statutory authority to impose a vaccine mandate, while Justice Alito argued that even if it did have the authority, the Government did not show the  “good cause” required in order to skip the proper public notice and comment rule making process.

CMS Response. CMS issued a statement in response to the ruling stating that as a result of the decision, the 24 states covered by it “will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.” An updated compliance timeline for Phase 1 and Phase 2 Implementations in these states was not included in the statement. CMS did go on to state that the decision by the Supreme Court does not affect compliance times for all other states and the District of Columbia where the preliminary injunction was previously lifted. The deadline for Phase 1 Implementation in those states is January 27, 2022 and the deadline for Phase 2 Implementation is February 28, 2022. See the guidance released on December 28, 2021 for more information regarding these compliance times.

Emily H. Lineweaver
Emily Lineweaver is a member of the Firm’s Health Care Service team and concentrates her practice in the areas of health care and related litigation. Read More