A federal court in Missouri has issued a preliminary injunction in a case brought by 10 states (Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire) challenging the Centers for Medicare and Medicaid Services’ interim rule issued on November 5, 2021. The CMS rule requires certain healthcare workers at providers that participate in Medicare and Medicaid to be fully vaccinated against Covid-19, with proof of a first dose by December 6, 2021. Unlike its OSHA ETS cousin, there is no option for employers to implement a test in lieu of vaccine policy.
Judge Matthew Schelp of the Eastern District of Missouri concluded that the rule was likely an overreach of administrative agency power on an issue “fraught with deep economic and political significance.” In addition, he found a lack of good cause to bypass normal rulemaking processes given CMS’s own delay in implementing the rule, and a lack of evidence to support a showing that vaccination status directly impacts the spread of COVID in covered facilities.
Notably, the injunction blocks enforcement of the CMS rule in the 10 petitioner states only. The lawsuit is one of four challenging the CMS rule and the only one, so far, to successfully halt its implementation. A federal court in Florida declined to block the rule in a separate suit, and the fate of the other two cases, both filed in federal district courts in the Fifth Circuit, remains to be seen.
In the meantime, Maryland employers and those in other states that are not impacted by this decision should continue to take steps to comply with the CMS rule.