This Medicaid and Medicare vaccine mandates legal review was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
Over the past weeks, several courts around the country have stayed the Medicare and Medicaid vaccine mandates. As of today, December 20, 2021, the mandate is stayed in 25 states, and in force in 25.
Staying this mandate is more surprising than staying the OSHA mandate we have discussed before because while a vaccine mandate is new (but not other broad workplace regulations), and OSHA Emergency Temporary Standards require a high bar rarely met, there is a long history of extensive, broad funding conditions under Medicaid and Medicare.
I have decided to do this as an overview rather than a full analysis of each of the Medicare and Medicaid vaccine mandates decisions, simply because I want to get it out promptly. I will say that my view is that the strongest argument against the rule is that it was enacted without notice and comment, and that, itself, is not a very strong argument.
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