U.S. Supreme Court Upholds CMS Mandate



Washington, DC—On January 13, 2022, the U.S. Supreme Court ruled in a 5-4 decision, an unsigned opinion, that it would allow the CMS mandate to stand. The court had heard oral arguments on January 7, 2022. Injunctions by Missouri, Louisiana and Texas, which impacted 25 states are now repealed by the ruling. 

The majority, finding for the Biden Administration, was comprised of the three liberal justices, Justices Breyer, Kagan, and Sotomayor, and two conservative justices, Chief Justice John Roberts and Justice Brett Kavanaugh. 

The majority held that it is part of the Department of Health and Human Services function and core mission “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.”

The majority noted, “Such providers include hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more. To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such ‘requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.’”

However, four conservative justices dissented, Justices Alito, Thomas, Gorsuch and Barrett. They each signed two different dissents. In one dissent, Alito stated, “I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vaccinated on pain of being fired.” In the other dissent, Thomas stated, “These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.”

The Court’s lift of two injunctions which covered more than 10 million health care workers means that workers are required to receive one shot by January 27, 2022 and a second by February 28, 2022. Failure to have less than 100% of employees vaccinated may lead the facilities to be removed from Medicare or Medicaid programs. However, the agency has said that it would provide grace periods to facilities with at least 80% of their staff vaccinated by the January 27, 2022 deadline.

The strain on the health care system is sure to be felt. AFLDS's founder, physician and attorney Simone Gold stated, "As critical thinkers will not choose a career that violates their civil liberties, the quality of care will diminish significantly. This disappointing decision highlights the imperative need for affordable, private, patient-centered healthcare without government or payor interference. Patients deserve to know their doctor is unbiased. AFLDS will continue to fight this battle.” 

This is not the end of the road for the CMS litigation. The court challenges remain, as the ruling addressed the injunction only and was not a ruling on the merits. The cases, if there are conflicting lower court rulings, as might be expected, may be reviewed in the future by the Supreme Court.


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