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CMS Vaccine Mandate Is in Effect Despite Lawsuits, Attorneys Say

Notwithstanding the lawsuit filed by 12 states against CMS over its Nov. 5 COVID-19 vaccination regulation for Medicare and Medicaid facilities less than a week after 10 other states did the same thing, it’s in effect, and health care organizations should be moving toward compliance, lawyers say.[1] The Omnibus COVID-19 Health Care Staff Vaccination Regulation, an interim final rule, is being challenged on the grounds that it was implemented without proper notice and comment rulemaking and without statutory authority.[2] CMS crafted the regulation to withstand the substantive challenges, but it may lose on procedural grounds, which would delay the vaccine mandate, not defeat it, an attorney said.

“For now, December and January deadlines are in effect and likely the deadlines will remain in effect,” said Chris Kenny, an attorney with King & Spalding in Washington, D.C., at a Nov. 16 webinar sponsored by the firm.[3] They are “the law of the land unless a judge enjoins the rule and perhaps remands it.”

Some states also are considering laws prohibiting vaccine mandates that could complicate compliance, although CMS anticipated them as well and insists in the regulation that it pre-empts state laws and executive orders because of the supremacy clause of the U.S. Constitution, which states that federal laws supersede any conflicting state laws, Kenny said. “Be prepared to comply while the deadlines are in effect and if that changes, provider responses will have to be recalibrated along those lines.”

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