Additionally, the states’ revised challenge takes issue with the fact that CMS newly-required state surveyors overseeing Medicare and Medicaid-participating facilities to be vaccinated against COVID-19 in a Jan. 25 guidance document.

“Apparently emboldened by the Supreme Court’s preliminary decision, the federal government has extended its lone, remaining mandate to employees of the State,” the complaint reads.

CMS essentially adding a new class of people to its mandate after the fact could interest judges, said James Hodge, law professor and director of the Center for Public Health Law and Policy at Arizona State University.

“Now that sounds novel, and that sounds unique. That sounds like the type of new claim that even the Supreme Court would say, yeah, wait a minute, we don’t allow that sort of thing,” Hodge said.

But Hodge believes this decision by CMS will end up being irrelevant because the mandate covers other state employees, like those working at state-run hospitals.

Additionally, although the states raise a new angle, the Supreme Court’s preliminary ruling on the mandate raises the bar for arguments against it, said Susan Feigin Harris, a partner at Norton Rose Fulbright.

“I frankly think, legally, it’s not going to pass muster. But…we know that there’s a political component to these kinds of challenges,” she said.

Federal officials wrote in their response brief the Supreme Court already took care of this case. The high court was well aware of omicron when deciding to allow the mandate to continue, the officials wrote. Furthermore, the Jan. 25 guidance only sets out expectations, and has no enforcement mechanism for making sure surveyors are vaccinated.