On Wednesday, December 15, 2021, the Fifth Circuit Court of Appeals reversed a lower-level federal court decision and LIFTED the nationwide injunction that had been granted against the enforcement of the CMS vaccination mandate for covered providers. The Fifth Circuit held that the district court went too far in issuing a nationwide injunction. As a consequence of the Fifth Circuit’s decision, the CMS vaccination mandate is now technically only on hold for the States that had sued CMS; Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire. The mandate is, thus, in effect in New York. Prior to the Fifth Circuit’s decision, CMS had suspended enforcement of the regulation. We expect CMS to clarify its stance on enforcement and compliance deadlines shortly, in view of the Fifth Circuit’s decision.
As readers of our alerts will recall, the CMS regulation applies to CHHAs, but not to FIs and LHCSAs. Also, CHHAs are already covered by the Department’s August 26 vaccination mandate. Thus, the CMS regulation has limited impact on CHHAs in New York State.