Florida Medicare and Medicaid Providers' Vaccine Mandate Dilemma

Florida healthcare providers billing federal programs may again face a complicated COVID-19 quandary. The U.S. Court of Appeals for the Eleventh Circuit has denied the state of Florida's request for an injunction against the Centers for Medicare & Medicaid Services (CMS) mandate requiring all staff of Medicare- and Medicaid-certified providers and suppliers to be vaccinated. As a result, the CMS mandate will come back to life in Florida if the nationwide injunction of a district court located outside of the state is lifted by the U.S. Court of Appeals for the Fifth Circuit or other judicial action is not forthcoming. Should this occur, Florida healthcare providers will once again have to make a choice between complying with the CMS mandate or Florida's newly enacted law granting employees exemptions from federal vaccination mandates.

Background and Related Court Rulings

The CMS mandate is, in reality, an Interim Final Rule with Comment Period (IFC), entitled "Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination." It requires vaccination for all "facility staff" who provide care, treatment or other facilities regardless of patient contact and applies to 15 categories of Medicare- and Medicaid-certified providers and suppliers. Florida Senate Bill (SB) 2-B enacted Florida Statute 381.00317, which prohibits employers from terminating or functionally terminating an employee who presents a form invoking one of five exemptions to an employer's COVID-19 vaccination mandate. (See Holland & Knight's previous alert, "Florida Gov. Ron DeSantis Signs Bills Regarding Vaccine Mandates," Nov. 18, 2021.)

On Nov. 20, 2021, the U.S. District Court for the Northern District of Florida (Pensacola Division) denied Florida's request for a Temporary Restraining Order against the CMS mandate. The court ruled that the state failed to show irreparable injury. Initially, the court did not consider the impact of SB 2-B because Florida's briefing preceded its passage and the state did not update the court upon its enactment. However, the court issued a supplemental opinion after learning of SB 2-B that doubled down on its initial ruling. Florida appealed during the interim.

Then, on Nov. 29, 2021, the U.S. District Court for the Eastern District of Missouri (Eastern Division) enjoined the CMS mandate against any and all Medicare and Medicaid-certified providers and suppliers within the plaintiff states (i.e., Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming). The following day, the U.S. District Court for the Western District of Louisiana enjoined the IFC nationwide (except as it relates to the states where an injunction is already imposed). Both cases are on appeal. On Dec. 2, CMS announced that it would not enforce or implement the mandate while the injunctions are in effect.

Eleventh Circuit Ruling

Florida forged ahead with asking the Eleventh Circuit for an injunction against the CMS mandate pending appeal, pointing out that the United States had moved to stay the Missouri injunction on appeal and would probably do likewise in the Fifth Circuit. On Dec. 5, a split panel of the Eleventh Circuit denied Florida's motion, then issued its related opinion on Dec. 6. The majority wrestled with standing first, but decided that Florida satisfied this threshold because the court considered it likely that the Fifth Circuit will pare back the nationwide scope of the injunction to no more than the plaintiff states.

The panel went on to rule that Florida failed to carry its burden to establish a substantial likelihood that it will succeed on the merits of its appeal. The court determined that CMS in fact had the statutory authority to promulgate the mandate. It ruled the "major questions doctrine," the primary foundation for the district court injunctions, inapplicable on the facts. Furthermore, the court decided that CMS was permitted under the circumstances to bypass the notice-and-comment requirement and that the mandate was neither arbitrary nor capricious. The panel also agreed with the district court that Florida failed to show irreparable injury or that any remaining factors supported an injunction.

Conclusion and Considerations

If the nationwide injunction is lifted and CMS reinstates its mandate, Medicare- and Medicaid-certified providers in Florida will need to decide whether to follow federal or state law, raising preemption questions that will require consultation with legal counsel. The CMS mandate also allows for limited exemptions, but not for all of the exemptions provided for under Florida law. Both the CMS mandate and the Florida law include potential sanctions for noncompliance. Consequently, the consequences for violating either set of requirements could be severe. Holland & Knight's Healthcare & Life Sciences Team will be monitoring developments closely.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.