Staff Contact: Jane Drummond
The Biden administration filed an appeal in the Eighth Circuit Court of Appeals seeking to overturn the preliminary injunction of its Omnibus COVID-19 Health Care Staff Vaccination rule. The Eighth Circuit set a briefing schedule by which the case would be briefed and ready for oral argument in early March; however, one or both parties could ask the court to accelerate that schedule.
The Centers for Medicare & Medicaid Services also sought a stay of the injunction while the appeal is pending, which the district court denied. Therefore, until further notice, the injunction remains in effect in Missouri and the nine other states participating in this suit.
Unless otherwise stipulated by the parties, the Court of Appeals will review the decision to preliminarily enjoin the rule but will not render a final decision on the merits of the case. Once it issues a ruling, the case would be remanded back to the federal district court in Missouri for further proceedings and a final judgment.
The injunctions are a pause in the implementation of CMS’ vaccine mandate but should not be viewed as final action. Litigation is unpredictable, and hospitals should continue to develop policies and processes necessary to implement the rule in the event it is allowed to move forward. At this time, staff do not need to receive an initial vaccination by the Dec. 5 deadline, but the timeline to implement the rule’s requirements could be short in the event of a reversal by the appellate courts.
Yesterday, a Louisiana federal court issued an injunction against the rule and ordered that CMS refrain from enforcing the mandate in the 40 states not covered by Missouri’s injunction. It is anticipated that CMS will quickly appeal that ruling to the Fifth Circuit Court of Appeals.