backSupreme Court to Review Federal COVID-19 Vaccine Mandates in Early January
Last Wednesday, the U.S. Supreme Court announced it would hear oral arguments on January 7, 2022, regarding the legality of two federal COVID-19 vaccine mandates issued under the Biden administration. The justices will be considering four appeals, consolidated into two separate sets of oral arguments.
The first set of consolidated cases concerns the enforceability of the Occupational Safety and Health Administration (OSHA) rule, published November 5, 2021, that requires employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on a weekly basis.
Various states, businesses, and religious organizations contested OSHA’s authority to promulgate the rule. Affirming the rule, the U.S. Court of Appeals for the Sixth Circuit opined, “To protect workers, OSHA can and must be able to respond to dangers as they evolve.” The Sixth Circuit decided to lift a stay previously issued by the Fifth Circuit that had blocked enforcement of the OSHA rule. Early last week, at least a dozen challengers asked the Supreme Court to re-stay the enforcement of the rule.
The second set of cases the Supreme Court agreed to hear addresses a rule issued by the Centers for Medicare and Medicaid Services (CMS) on November 5, 2021. The CMS rule mandates that staff working for Medicare or Medicaid certified providers be fully vaccinated against COVID-19, with narrow exceptions for religious and medical reasons.
Federal district courts in Missouri and Louisiana blocked the CMS mandate. Specifically, the U.S. District Court in the Eastern District of Missouri ruled that Congress did not grant CMS the authority to impose the vaccine mandate and issued a stay of the rule for the plaintiff-states in that case. Thereafter, the U.S. Court of Appeals for the Eighth Circuit declined to stay that ruling.
Similarly, the U.S. District Court in the Western District of Louisiana issued a nationwide injunction blocking the rule, finding that CMS lacked the authority to implement the mandate. The U.S. Court of Appeals for the Fifth Circuit declined to stay that ruling, but lifted the nationwide injunction and instead limited it to the plaintiff-states. The federal government last week filed a petition with the Supreme Court seeking a stay of the injunctions issued by the Missouri and Louisiana decision courts pending full review by the Eighth and Fifth Circuits.
In a statement released on December 22, 2021, White House Press Secretary Jen Psaki asserted that the administration is “confident in the legal authority” for both the OSHA and CMS vaccine mandates, and that the U.S. Department of Justice “will vigorously defend both at the Supreme Court.”
The Supreme Court’s recent announcement on December 22, 2021 that it will hear full arguments on these stay requests is unusual as the Court typically acts on emergency applications without oral argument or at least first converts the application to a full hearing on the merits. The unusual pathway for these appeals likely reflects the significant legal and policy importance of the vaccine mandates on appeal before the Supreme Court.
The cases before the U.S. Supreme Court are Biden et al. v. Missouri et al., case number 21A240; Becerra et al. v. Louisiana et al., case number 21A241; National Federation of Independent Business et al. v. Department of Labor et al., case number 21A244; and Ohio et al. v. Department of Labor et al., case number 21A247.
A copy of the U.S. Supreme Court order, consolidating National Federation of Independent Business et al. v. Department of Labor et al. and Ohio et al. v. Department of Labor et al. for oral argument on January 7, 2022, can be downloaded here.
A copy of the U.S. Supreme Court order, consolidating Biden et al. v. Missouri et al. and Becerra et al. v. Louisiana et al. for oral argument on January 7, 2022, can be downloaded here.
Reporters, Christopher P. Kenny, Washington, DC, +1 202 626 9253; ckenny@kslaw.com; Nikesh Jindal, Washington, DC, +1 202 383 8933, njindal@kslaw.com; Kelley T. Tran, Los Angeles, +1 213 443 4328, ktran@kslaw.com
CMS Reverses Approval of Work Requirements and Premiums for Georgia Medicaid
On December 23, 2021, CMS announced that it was rescinding its prior approval of the Georgia Pathways to Coverage demonstration project, which would have required Georgia residents to work as a condition of Medicaid eligibility and allowed the state to charge premiums to a larger class of individuals than permitted under the Medicaid statute. These proposals could have gone into effect as early as next week had CMS not withdrawn its prior approval.
The Georgia Pathways to Coverage demonstration project would have required adults within a certain percentage of the federal poverty level to work at least 80 hours each month to qualify for Medicaid. In addition, the demonstration would have required Medicaid beneficiaries earning between 50 and 100 percent of the federal poverty level to pay monthly premiums.
CMS approved the demonstration project on October 15, 2020. According to the Kaiser Foundation, Georgia was one of eleven states that received approval to impose work requirements under the Trump Administration.
In his first week in office, President Biden signed an executive order directing CMS to review Medicaid work requirements that were approved under the previous administration. Soon thereafter, by letter dated February 12, 2021, CMS informed Georgia Medicaid that it was considering withdrawing its approval of the Georgia Pathways to Coverage demonstration, citing “ongoing disruptions caused by the COVID-19 pandemic.” Georgia agreed to delay implementation of its demonstration project until the end of 2021 while it negotiated with CMS to address the agency’s concerns.
Last week, CMS informed Georgia that it was reversing its prior approval of the Georgia Pathways to Coverage demonstration project. The agency explained that both the work and the premium requirements contained in the demonstration project would restrict Georgian’s access to coverage.
None of the other ten states that received approval from the Trump administration to impose work requirements have done so. Earlier this year, CMS rescinded its past approval of work requirements for South Carolina, Ohio, Wisconsin, Arizona, Indiana, and Utah. And federal courts have blocked the implementation of work requirements in Arkansas, Kentucky, Michigan and New Hampshire.
A copy of the December 23, 2021 CMS letter rescinding its prior approval of the Georgia Pathways to Coverage demonstration project is available here. A CMS press release announcing its decision to rescind its approval of the demonstration project is available here.
Reporter, Alek Pivec, Washington D.C., +1 202 626 2814, apivec@kslaw.com