December 1, 2021

Two U.S. District Courts issued preliminary injunction orders this week barring CMS’ implementation of the Ominibus COVID-19 Health Care Staff Vaccination Rule (“CMS Vaccine Mandate”) on a nationwide basis.  The CMS Vaccine Mandate was announced on November 5, 2021 and requires most Medicare suppliers and some Medicare providers to ensure their staff are fully vaccinated by January 4, 2022.  A summary of the CMS Vaccine Mandate’s requirements is available here

On November 29, 2021, a federal judge in Missouri granted a preliminary injunction which prohibits the CMS Vaccine Mandate from taking effect in ten states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. The next day, a federal judge in Louisiana issued an order that barred implementation of the CMS Vaccine Mandate in all remaining states not covered by the Missouri ruling.  While in place, the preliminary injunctions prohibit the CMS Vaccine Mandate from taking effect nationwide. These cases are among several that are currently challenging the CMS Vaccine Mandate but are the first to find success. The Biden Administration filed appeals of the District Court rulings in both the Louisiana and Missouri cases.  Recently, another federal judge denied a preliminary injunction request in Florida, which is also the subject of a pending appeal. 

Although the preliminary injunction orders signal some success for opponents of the CMS Vaccine Mandate, the ultimate fate of it is unknown and will be subject to additional litigation, appeals and potential action from the Administration. Polsinelli will continue to monitor the issue and provide additional updates as these events unfold.