December 1, 2021


CMS Staff Vaccine Mandate–it’s on. NO WAIT! It’s off.

On Monday, following a lawsuit from Missouri Attorney General Eric Schmitt, the United States District Court, Eastern District of Missouri, issued a preliminary injunction, halting the Biden Administration from enforcing its vaccine mandate on healthcare workers in the 10 states that joined Missouri’s coalition. This particular injunction did not include Minnesota. Then, on Tuesday, the United States District Court in the Western District of Louisiana issued a nationwide injunction preventing the federal government from implementing the CMS vaccine mandate for health care staff. This injunction applies to all states which were not covered by the ten-state injunction, ensuring that the entire nation is covered. In its memorandum ruling, the District Court in the Louisiana case found that the federal government did not have the authority to issue such a mandate. 

It is anticipated that representatives from the Minnesota Department of Health will discuss this update during their 3:30 PM call this afternoon. Register here for the call.

There are currently four active cases regarding the CMS interim final rule staff vaccine mandate: 
  • Louisiana litigation, which was filed by a 14-state group
  • Missouri litigation filed by 10 states and which was the subject of the 10-state preliminary injunction issued
  • Individual cases filed by the states of Florida and Texas. 

Florida’s request for a preliminary injunction was denied by the District Court last week and is being appealed. A hearing in the Texas case is scheduled for Thursday morning. The federal government Tuesday noticed its intention to appeal the 10-state injunction which makes it likely we should expect an appeal of the nationwide injunction as well. 

What does this all mean? Right now, the CMS staff vaccination mandate will not go into effect anywhere in the nation. But this could easily change by a higher court ruling.

  1. If you believe the injunctions will hold, continue to encourage staff vaccinations, boosters, and exemptions for medical or sincerely held religious beliefs–without the threat of losing employment.
  2. If you believe the injunctions will be overturned (according to AHCA, a more likely scenario), continue to encourage staff vaccinations, boosters, and waivers for medical or sincerely held religious beliefs–explaining that any unvaccinated staff who do not have an approved exemption for medical or sincerely held religious beliefs, may be unable to be employed at an unknown future date.

While the interim final rule is, as of today, prevented in all states from going into effect, nursing facilities should continue to prepare to have policies and procedures ready so that if the government’s arguments prevail, they can be quickly implemented.

As a reminder, the original deadlines (now on hold due to court injunctions) for providers to meet the Centers for Medicare and Medicaid Services (CMS) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (IFR) on vaccination mandates were to begin next week. Skilled nursing facilities, nursing facilities, and ICF-IIDs were to establish a policy ensuring that all eligible staff be vaccinated for COVID-19 or request a medical or religious exemption by the following deadlines: 

  • Phase 1–December 6, 2021: Staff were to have received at least the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine. 
  • Phase 2–January 4, 2022: Staff were to be fully vaccinated, except staff who have been granted exemptions, or those whom COVID-19 vaccination must be temporarily delayed as recommended by the CDC due to clinical precautions and considerations. 

To help providers comply with this requirement, the American Health Care Association (AHCA) has developed a template policy and procedures on the COVID-19 vaccination mandate. You can also find resources on the Care Providers of Minnesota COVID-19 website—posting of the interim final rule and a simplified sample policy for your adaptation. COVID-19: Vaccinations
AHCA will also host member-only Office Hours on Thursday, December 2 at 10:30 AM CT with AHCA/NCAL Chief Medical Officer Dr. David Gifford and Vice President of Quality and Programs Courtney Bishnoi to discuss the latest available information about the IRF and answer questions. Registration is required and limited.

A recording of the AHCA member-only webinar on implementing religious and medical exemptions is now available. CMS has recently updated its Frequently Asked Questions on the IRF, which AHCA recommends providers review. A few more common questions were clarified by the CDC in a call last week:
  • What about new employees—can they start after their first dose, or do they need to wait 14 days? They can start right after the first dose.  
  • What do we do with other contracted staff? Staff from the contracted companies must comply with vaccine mandate—those with contracts for routine services being provided
Questions? Please contact:

Vice President of Member Services 
952-851-2489
Care Providers of Minnesota | www.careproviders.org