July 3, 2022

Volume XII, Number 184

Advertisement
Advertisement

July 01, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

Vaccination Mandate for Nursing Homes is Revived, for Now, in Wisconsin

After being blocked this month by a federal judge in Louisiana, the COVID vaccination mandate for nursing home staff has been reinstated in Wisconsin and 25 other states, at least for now.

The background: In November the Centers for Medicare & Medicaid Services required nursing homes participating in Medicare and Medicaid to have staff fully vaccinated by January 4 (except for staff with certain recognized medical conditions or religious beliefs). In early December a federal district court in Louisiana, in a lawsuit by 14 states seeking to stop the mandate, blocked the mandate nationwide (except in 10 states involved in a separate lawsuit).

On Wednesday the United States Court of Appeals for the Fifth Circuit in New Orleans upheld the district court’s injunction, but only in the 14 states involved in that lawsuit. The district court did not have authority to block the mandate outside those 14 states, the appeals court ruled. Wisconsin is not among those 14 states. The vaccine mandate is now back in effect for Wisconsin and the 25 other states that are not involved in the 14-state lawsuit or the separate, 10-state lawsuit.

The Court of Appeals upheld the injunction because it determined that the federal government had not shown that it was likely to prevail on a legal issue regarding when courts must defer to government agencies. Two of the appellate judges were appointed by President Barack Obama and the third was appointed by President George W. Bush.

CMS has not announced how it will enforce the vaccine mandate in the 26 states where the mandate has not been blocked. The American Health Care Association says it expects CMS to set a new deadline for compliance rather than continue with the previously announced deadlines (December 6 for the first shot and January 4 for the second).

On Thursday the Wisconsin Health Care Association said the state’s Division of Quality Assurance would not enforce the mandate or ask for compliance documentation until CMS issues new direction, which could come any time.

Operators of Wisconsin nursing homes should continue to watch for court action that could affect the mandate and watch for CMS and DQA guidance on implementing the mandate if it is not blocked. Operators should also be prepared to carry out the mandate when necessary.

Two separate federal mandates regarding vaccinations or COVID testing have been temporarily blocked in the courts. One is for businesses with 100 or more employees and the other is for federal contractors. The various mandates appear likely to be decided by the U.S. Supreme Court.

© 2022 Davis|Kuelthau, s.c. All Rights ReservedNational Law Review, Volume XI, Number 350
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Alec Dobson Shareholder Milwaukee Healthcare long-term care facilities, hospitals, physicians
Shareholder

Alec Dobson is a litigation attorney with Davis|Kuelthau, s.c. focusing in the health care arena. He defends long-term care facilities, hospitals, physicians and other health care providers in litigation and regulatory matters. Alec’s clients range from large, national providers to small, family-owned facilities. The matters include issues of medicine and other complex subjects. Before practicing law, Alec was a newspaper journalist.

Representative Clients

  • Skilled nursing facilities
  • Assisted living facilities
  • Hospitals
  • Physicians
  • ...
414-225-1463
Advertisement
Advertisement
Advertisement