Now that a federal appeals court has weighed in, the CMS mandate may reach One First Street.
Earlier this week, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit denied Florida’s motion for an injunction against the Biden Administration’s interim rule requiring that Medicare and Medicaid providers ensure that all employees receive COVID-19 vaccines. Judges Jill Pryor and Robin Rosenbaum wrote the opinion for the court in Florida v. HHS. Judge Barbara Lagoa dissented.
The panel majority accepted the federal government’s argument that the Center for Medicare and Medicaid Services (CMS) has the authority to impose requirements on Medicare and Medicaid providers to ensure that they protect the health and safety of their patients. I described the rule at issue and outlined some of the arguments for such authority in posts here and here. The panel also concluded that CMS had “good cause” to bypass the normal notice-and-comment process and to issue an interim final rule.
Of note, the majority also devoted several pages of its opinion to the question of whether it should hear Florida’s request for a preliminary injunction given that a district court in Louisiana issued a nationwide injunction against the rule last week. As I noted in my post on that decision, the nationwide injunction was entered without any meaningful analysis, and referenced authority that did not support the proposition for which it was cited. The weakness of the district court’s analysis was one factor the panel majority cited in justifying its consideration of Florida’s motion, as there is no guarantee the Louisiana court’s injunction will withstand appeal.
Judge Lagoa dissented on the grounds that CMS mandate is exceeds the agency’s delegated authority and was arbitrary and capricious. Although Congress has delegated authority to CMS to issue regulations that, among other things, ensure the health and safety of Medicare and Medicaid recipients, she did not believe CMS could justify this rule on those grounds. Among other things, she noted that the CMS rule applies to many health care facility employees who have not patient contact, including administrators and contractors, and therefore the scope of the rule is far broader than would be necessary to protect Medicare and Medicaid recipients. She also faulted the agency’s explanations for rejecting less stringent alternatives, such a providing exemptions to those with “natural immunity” or allowing providers to implement testing requirements in lieu of mandating vaccination.
The objections to the CMS rule largely parallel those against the other federal vaccine requirements. Although the CMS rule is, in meaningful ways, more stringent than the OSHA ETS, it also seems to be on stronger ground. Both the statutory and policy arguments for mandating the vaccination of health care workers at Medicare and Medicaid providers are stronger than those for requiring vaccination of workers at all large employers. The CMS rule can be justified as a measure to protect Medicare and Medicaid recipients, which is something CMS clearly has the authority to do. Mandating vaccination or testing of all workers who happen to work at firms with 100 or more folks on the payroll, on the other hand, seems like a more opportunistic effort to increase overall vaccination rates, and less a measure to increase workplace safety, which is all that OSHA has the authority to pursue.
Whether or not it is the most legally vulnerable federal vaccine rule, with this decision from the Eleventh Circuit, the CMS mandate could become the first Biden Administration COVID-19 vaccination rule to reach the Supreme Court (even if, as is possible, Florida first seeks en banc review). While the U.S. Court of Appeals for the Fifth Circuit previously ruled on the OSHA vaccinate-or-test ETS, review of all the challenges to the OSHA requirement have been consolidated in the U.S. Court of Appeals for the Sixth Circuit. This means it will be some time before the OSHA rule is ready to go up, if ever. Under the OSH Act, the ETS is only supposed to be in place for six months, and if OSHA adopts a permanent replacement, that litigation may have to start over at square one. Thus the CMS rule requiring vaccination for health care workers might well be the first Biden Administration vaccine requirement the justices get to consider.