This story has been updated to include additional details.
Long-term care providers in 26 states will still have to comply with a federal COVID-19 vaccine mandate after a federal appeals court on Wednesday reversed a nationwide block against the rule.
A three-judge panel from the Fifth Circuit Court of Appeals in New Orleans ruled that the lower court did not have the authority to block the mandate nationwide, but only could stop the rule in the 14 states that sued.
It was not immediately clear whether the original Jan. 4 deadline for healthcare workers to be fully vaccinated would remain or be adjusted. The temporary injunctions were handed down just days before the first-round deadline of Dec. 6. Industry stakeholders and legal experts have suggested that the best practice for operators would be to prepare to meet the deadlines as the court challenges play out.
Provider organizations had mixed reactions to Wednesday’s ruling, the second this week on the Centers for Medicare & Medicaid Services rule.
“As COVID-19 variants emerge and proliferate, we continue to strongly urge everyone in long-term care receive vaccinations and get boosters,” Katie Smith Sloan, president and CEO of LeadingAge, said in a statement. “Mandates work. Having fully vaccinated staff and residents ensures that everything possible is being done to deliver safe, quality care to older adults.”
On a call with members Wednesday afternoon, other LeadingAge leaders noted that, functionally, nothing changes for providers for now. CMS had issued a memo Dec. 2 telling surveyors to pause enforcement of its rule while injunctions against were in place. The agency did not immediately return a request for comment by McKnight’s Long-Term Care News ahead of production deadline.
The American Health Care Association/ National Center for Assisted Living was more measured, saying it “remained concerned” that implementation of the vaccine mandate would exacerbate the long-term care sector’s labor crisis.
“Given the legal seesaw and anticipated additional challenges through the courts, we ask that CMS and state surveyors show leniency to providers and staff during this uncertain time,” AHCA said in a statement shared with McKnight’s Wednesday. “Even during the court injunctions, we encourage long-term care providers to continue their efforts to get as many staff as possible to consent to vaccination. We also encourage providers to prepare their policies and procedures in order to be ready should the federal government’s arguments prevail. Nevertheless, we continue to urge CMS to allow a regular testing option for unvaccinated staff and, therefore, support any legal remedy or CMS action that would bring about this solution.”
‘Airing of competing views’ ahead
This is the Biden administration’s first major court win for the regulation. A U.S. District Judge in Florida declined to issue an injunction for that state. But the Eighth Circuit Court of Appeals in Missouri upheld an injunction on the CMS mandate for another 10 states, despite the administration’s request to lift it.
With Wednesday’s decision, the mandate remains temporarily blocked in a total of 24 states.
The Fifth Circuit Court of Appeals ruling, which gives the administration at least a tentative victory, said the lower Louisiana U.S. District Court ruling that made the injunction nationwide was an unsubstantiated overreach. The higher court said there was “little justification for issuing an injunction outside the 14 states that brought this suit.”
Judge Terry A. Doughty, of the U.S. District Court of Western Louisiana, wrote on Nov. 30 that he expanded the temporary injunction from the requested 14 to a total of 40 states “due to the need for uniformity” across the country.
The 14 states under his jurisdiction (where a temporary injunction is still in place are): Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia. The challenge against the mandate was led by Louisiana Attorney General Jeff Landry (R). He noted in a statement on Wednesday that the “court action does not change anything for Louisiana’s healthcare heroes; they remain protected by Judge Doughty’s injunction.”
The first 10 states where the mandate remains paused under a temporary injunction are Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
Wednesday’s ruling makes it clear that it is just another step in a complicated maze of lawsuits and appeals that will be affected by other rulings, and many believe ultimately could be appealed to the U.S. Supreme Court.
“We anticipate this will be appealed pretty quickly,” said Cory Kallheim, vice president of legal affairs and social accountability for LeadingAge.
The CMS healthcare worker vaccine mandate covers 17 million employees working for 76,000 providers in settings funded by the Medicaid and Medicare programs.
“This vaccine rule is an issue of great significance currently being litigated throughout the country,” noted the Fifth Circuit Court of Appeals justices in their ruling. “Its ultimate resolution will benefit from ‘the airing of competing views’ in our sister circuits. See id. Though here too, as with the other issues before us, we are not in a position to make definitive pronouncements about the outcome of this appeal, we do predict that the Secretary is likely to prevail in limiting the scope of the injunction.”
