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Wisconsin Supreme Court Invalidates Governor’s Safer-at-Home Order

May 14, 2020

Late yesterday, the Wisconsin Supreme Court invalidated the statewide safer-at-home order issued at Governor Evers’ direction by DHS Secretary-designee Palm.  WHA is still digesting the full implications of the decision, but here is what we know right now:

  • A 4-3 majority of the Court concluded that Emergency Order 28 – the safer-at-home order – was unlawful because it did not follow Wisconsin’s statutorily dictated rulemaking procedures. 
  • The majority also concluded that the safer-at-home order exceeded the DHS Secretary’s authority under the communicable disease statute, but the majority did not rule on to what extent the Secretary exceeded that authority. 
  • The Court also invalidated the safer-at-home order, effective immediately.  It did not grant the Legislature’s request to keep the safer-at-home order in place for an additional six days after a decision. 
  • Some local governments have begun issuing their own stay-at-home orders, citing authority given to local government under the state’s communicable disease statute. 

For hospitals, nothing in the Court’s decision directly impacts hospital operational decisions, such as permitting visitors or reopening services.  The decision on its face also does not impact key WHA-championed regulatory flexibilities including:

  • DHS implementation of hospital 1135 waivers granted by CMS, including critical access hospital and other bed expansion.
  • Temporary medical liability changes enacted in Act 185.
  • Medicaid policy changes regarding telehealth detailed in Act 56.
  • A temporary expedited process to license recently retired and out of state health care professionals enacted in Act 185.

Regarding next steps by the Governor and Legislature, many expect that DHS will begin the process to establish emergency rules to replace at least some parts of the safer-at-home order and the Badger Bounce Back plan.  However, the Legislature has a role in the rulemaking process; thus, there is likely to be a negotiation between the Legislature and the Governor on next steps for any replacement of COVID related restrictions that were in the safer-at-home order or the Badger Bounce Back plan. 

WHA will continue to closely watch and act as necessary as new details, interpretations and developments warrant.  In the meantime, please feel free to contact WHA if you have any questions.

This story originally appeared in the May 14, 2020 edition of WHA Newsletter