Litigation continues as the December 6th compliance date looms for Medicare providers and suppliers subject to CMS' vaccine mandate. Florida’s motion for preliminary injunctive relief was denied Saturday without the district court receiving briefing from HHS. There is no indication yet whether Florida will immediately appeal that ruling to the Eleventh Circuit and file an emergency motion for relief there.
On Thursday, Florida Governor DeSantis signed a law prohibiting private employer vaccine mandates that provides for penalties of $50,000 per employee for employers of more than 100 employees.
One wrinkle in this drama is the fact that it is the state of Florida that is required to enforce the CMS mandate via the state survey agency; a refusal risks Florida's Federal Financial Participation.
Florida acknowledges this fact (below) in the CMS Complaint at Paragraph 69:
One obvious question - will Governor DeSantis tell AHCA not to enforce the mandate on Medicare providers and suppliers?
The issue of vaccine mandates and resulting litigation is one we are following closely, and are covering in-depth during an upcoming CLE as part of our (virtual) Washington Health Care Conference.
Florida’s AHCA also faces an equally untenable choice. It is obligated by contract and the mandate to survey participating facilities to verify compliance with the mandate. If it refuses to comply, it stands to lose millions in federal funding. And if it submits, it will be forced to expend additional resources while carrying out CMS’s compliance checks, which it again cannot recover in a suit against the federal government. See Chiles, 865 F.2d at 1209.