Amendment SSA1-AB1

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2021 - 2022 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 1

January 11, 2021 - Offered by Senators LeMahieu, Kapenga and Feyen.

AB1-SSA1,2,2 An Act to renumber 895.4801 (2) (a); to renumber and amend 450.11 (5) (br) 3.; to amend 13.101 (4d), 40.26 (5m), 40.26 (6) (intro.), 108.04 (3) (b), 108.062 (20) (intro.), 108.07 (5) (bm) 1., 108.07 (5) (bm) 2. a., 118.38 (4) (a) (intro.), 118.38 (4) (a) 2. a., 118.38 (4) (a) 2. b., 118.38 (4) (c), 323.19 (3), 323.2912, 440.15, 450.01 (11m), 450.01 (21s), 450.02 (1), 450.035 (2g), 450.035 (3), 450.035 (4), 450.11 (5) (br) 2. d., 609.205 (2) (intro.) and (a), 609.205 (3) (intro.), 632.895 (14g) (b), 632.895 (16v) (a) (intro.) and 895.4801 (2) (b) 1.; and to create 36.11 (44), 38.04 (33), 49.45 (39n), 50.083, 108.07 (5) (bm) 1m., 118.38 (4) (am), 440.08 (2) (a) 69g., 440.094, 450.01 (13w), 450.01 (23) (p), 450.03 (1) (fm), 450.035 (2i) (am), 450.075, 450.11 (5) (br) 3. b., 655.0025, 895.476, 895.4801 (2) (a) (intro.) and 895.4801 (2) (a) 2. of the statutes; relating to: state government response to COVID-19 pandemic, extending the time limit for emergency rule procedures, providing an exemption from emergency rule procedures, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Correctional system

Death of an inmate

Under current law, if an individual dies while he or she is in the legal custody of the Department of Corrections and confined to a correctional facility located in this state, an autopsy on the deceased individual must be performed. Under this bill, until the conclusion of a national emergency declared by the U.S. president under 50 USC 1621 in response to the 2019 novel coronavirus, if an individual who has been diagnosed with COVID-19 dies, the coroner or medical examiner may perform a limited examination of the deceased individual instead of a full autopsy, which may include an external examination of the body of the deceased individual, a review of the deceased individual's medical records, or a review of the deceased individual's radiographs. These changes were enacted in 2019 Wisconsin Act 185 but applied only during the state of emergency related to public health declared on March 12, 2020.

Courts

Civil liability exemption for certain entities relating to COVID-19 claims

The bill establishes a civil liability exemption for entities for any act or failure to act resulting in or relating to a person's exposure to the novel coronavirus identified as SARS-CoV-2 or COVID-19 in the course of or through the performance or provision of the entity's functions or services. Under the bill, entities are defined to include any legal entity, including businesses, associations, tribal governments or entities, governmental entities, schools, institutions of higher education, or nonprofit organizations, as well as employers or business owners, employees, agents, or independent contractors of the entity, regardless of whether they are paid or volunteers. Under the bill, immunity does not apply if the act or omission involves reckless or wanton conduct or intentional misconduct. The bill provides that an entity's noncompliance with any applicable national, state, or local order requiring entities to close or limit capacity does not constitute reckless or wanton conduct or intentional misconduct for purposes of immunity under the bill. The immunity granted in the bill applies retroactively to claims accruing on or after March 1, 2020, except that it does not apply to actions filed before the bill goes into effect.

education

Students' use of certain hours to satisfy course requirements

The bill requires University of Wisconsin institutions and technical colleges to offer students an opportunity to use hours engaged in an eligible activity to satisfy related course requirements to the extent appropriate. An “eligible activity” means volunteering or working, for at least one semester, to assist Wisconsin in responding to the COVID-19 pandemic.

School board reports on virtual instruction provided during the 2020-21 and 2021-22 school years

Under the bill, by 30 days after the end of each semester in the 2020-21 and 2021-22 school years, each school board must submit a report to the Department of Public Instruction that contains various information related to virtual instruction provided during the semester, including the amount of certain expenditure reductions or increases related to providing virtual instruction. A school board is not required to include information about virtual instruction provided by a virtual charter school in the report. Under the bill, DPI must compile and report to the legislature the information it receives from school boards for the first semester by the following April 1 and for the second semester by the following September 1. For the 2021-22 school year, a school board does not have to submit a report for a semester during which the school board does not provide virtual instruction in lieu of in-person instruction.

School boards were required to report similar information to DPI related to virtual instruction and school board operations while schools were closed by the Department of Health Services in the 2019-20 school year.

Waiver of laws and rules related to parental choice programs, the Special Needs Scholarship Program, and independent charter schools

During the period beginning on March 12, 2020, and ending on October 31, 2020, 2019 Wisconsin Act 185 granted DPI the authority to waive state education statutes, and rules promulgated under those statutes, related to 1) a parental choice program or the Special Needs Scholarship Program, 2) private schools participating in a parental choice program or the SNSP, and 3) independent charter schools. This bill extends the period that DPI is authorized to waive these state statutes and rules to October 31, 2021. Under the bill, DPI's waiver authority does not apply to requirements to administer pupil assessments.

During the period beginning on March 12, 2020, and ending on October 31, 2020, 2019 Wisconsin Act 185 also allowed DPI to establish alternate deadlines for requirements related to parental choice programs or the SNSP if the original deadline occurred between March 12, 2020, and October 31, 2020, or the original deadline related to another event that occurred between the same dates. The bill extends the period that DPI has the authority to establish such alternate deadlines to October 31, 2021, and extends DPI's authority to deadlines that would otherwise occur or are related to events that would otherwise occur on or before October 31, 2021.

employment

Unemployment insurance; claims backlog

The bill requires the Department of Workforce Development to address the backlog of UI claims by publishing, within 30 days of the effective date of the bill, a plan to address the backlog of UI claims to reduce the number of weekly claims for benefits in process, adjudication, and appeals to levels comparable to those in January and February 2020.

Unemployment insurance; call center

The bill requires DWD to extend the hours of the unemployment insurance call center to 12 hours per day, seven days per week, until the number of weekly claims in process, adjudication, and appeals are at levels comparable to those in January and February 2020.

Unemployment insurance; waiting period

Currently, a claimant must generally wait one week after becoming eligible to receive UI benefits before the claimant may receive benefits for a week of unemployment, but the application of the one-week waiting period is temporarily suspended for benefit years that began after March 12, 2020, and before February 7, 2021. This bill extends the end date for suspending the one-week waiting period to March 14, 2021.

Unemployment insurance; benefit charging

Current law, as enacted in 2019 Wisconsin Act 185, requires DWD, when processing claims for UI benefits and evaluating work-share plans, to determine whether a claim or plan is related to the public health emergency declared by the governor under Executive Order 72. If a claim is so related, current law provides that the regular benefits for that claim for weeks occurring after March 12, 2020, and before December 31, 2020, not be charged to the employers' accounts in the unemployment trust fund or to the employers directly, as is normally provided. Instead, the benefits for those weeks are, subject to numerous exceptions, to be charged to other accounts. This bill provides for this noncharging of benefits to continue through March 13, 2021, and requires DWD to presume that an initial claim for benefit years beginning on or after March 15, 2020, through March 13, 2021, relates to the public health emergency declared on March 12, 2020, by Executive Order 72 unless one of certain exceptions applies. The bill provides that an employer is not required to submit a request for charging relief for initial claims filed through March 13, 2021.

Work-share programs

Current law allows an employer to create a work-share program within a work unit of the employer. Under a work-share program, the working hours of all of the full-time employees in the program are reduced in an equitable manner in lieu of a layoff of some of the employees and a continuation of full-time employment by the other employees. A claimant for UI benefits who is included in a work-share program may receive UI benefits during his or her continued employment with the work-share employer in an amount equal to the claimant's benefit for total unemployment multiplied by the same percentage reduction in normal working hours that the claimant incurs under the program. Current law also provides for the temporary modification of certain requirements that apply to work-share plans with respect to work-share plans submitted on or after April 17, 2020, and before December 31, 2020. This bill extends the applicability of these modifications until the earlier of the conclusion of a national emergency declared by the U.S. president in response to the 2019 novel coronavirus or July 4, 2021.

Limited term employees

Under the bill, the director of the Bureau of Merit Recruitment and Selection in the Division of Personnel Management in DOA may adjust the number of hours a state employee in a limited term appointment may work during the period beginning on March 12, 2020, and ending on June 30, 2021. Under current law, a limited term appointment may not exceed 1,040 hours per year.

health and human services

Medical Assistance payment for hospitals for nursing facility care

The bill requires the Department of Health Services to provide reimbursement or a supplemental payment to hospitals under the Medical Assistance program for providing nursing-facility-level custodial care. To receive reimbursement or a supplemental payment, the hospital must notify DHS that it is participating as a swing bed hospital under the Medical Assistance program and providing custodial care for which federal financial participation is approved to an individual who is eligible for discharge after receiving inpatient care in the hospital, who needs nursing-facility-level care, and for whom the hospital is unable to locate a nursing facility that accepts the individual for admission. If providing reimbursement instead of a supplemental payment, DHS must pay the hospital the statewide average per-diem rate paid to nursing facilities. DHS must use the same standards and eligibility criteria as the federal Medicare program uses to determine reimbursement for swing beds or, for hospitals that are not critical access hospitals, the terms of a federal waiver issued during the federally declared national emergency related to the 2019 novel coronavirus. This requirement to reimburse hospitals for providing nursing facility care applies until June 30, 2021, or until the termination of any public health emergency declared by the secretary of the federal Department of Health and Human Services related to the 2019 novel coronavirus, whichever is earlier.

Payment for outpatient services provided by hospitals

The bill requires DHS to provide reimbursement or a supplemental payment through the Medical Assistance program to a hospital for services provided on an outpatient basis that are usually reimbursed when provided at the hospital's inpatient facility but are provided at the hospital's outpatient facility due to the 2019 novel coronavirus pandemic. To receive reimbursement or supplemental payment under the bill, the outpatient services must be approved for federal financial participation and must be provided in a facility that is operated by the hospital and is certified for outpatient services under the federal Medicare program, including under the terms of a federal waiver issued during the federally declared national emergency related to the 2019 novel coronavirus. DHS must seek any federal approval necessary to provide the reimbursement or supplemental payment. The payment requirement applies until the conclusion of a public health emergency declared by the secretary of the federal Department of Health and Human Services in response to the 2019 novel coronavirus or until June 30, 2021, whichever is earlier.

Medical Assistance reimbursement for COVID-19 vaccines and tests administered by pharmacies

The bill requires DHS to ensure that vaccines against SARS-CoV-2 coronavirus and tests for COVID-19 that are otherwise covered and reimbursed under the Medical Assistance program are covered and reimbursed when administered by a pharmacy. DHS must certify pharmacies as Medical Assistance providers as necessary to cover and reimburse pharmacies for administering COVID-19 vaccines and tests as the bill requires. Current law requires DHS to reimburse pharmacists for administering vaccines to children if the federal Department of Health and Human Services has approved the request by DHS to amend the state's Medical Assistance plan to allow such reimbursement and if the pharmacist enrolls in the federal Vaccines for Children Program.

Coverage of vaccinations under SeniorCare

DHS administers the SeniorCare program, which provides assistance to individuals who are elderly in the purchase of prescription drugs. 2019 Wisconsin Act 185 requires DHS to include under the SeniorCare program coverage of vaccinations that are recommended for administration to adults by the federal Centers for Disease Control and Prevention's Advisory Committee on Immunization Practices and approved by DHS. DHS must also provide payments to health care providers that administer the vaccinations and submit claims for payment in the manner required. SeniorCare is operated under a waiver of federal Medicaid laws, but DHS is required to operate the program regardless of whether a waiver is received from the federal government. The bill clarifies that DHS must cover and reimburse vaccinations under SeniorCare as required under 2019 Wisconsin Act 185 by January 15, 2021, regardless of whether a federal waiver is received.

Prescription order extensions

Current law allows a pharmacist to extend a prescription order under certain circumstances in the event that the prescription cannot otherwise be refilled, subject to certain criteria and limitations. However, current law also includes an alternative authorization for a pharmacist to extend a prescription during the public health emergency declared on March 12, 2020, by executive order 72, and for 30 days after the conclusion of that public health emergency. Under this alternative authorization, a pharmacist is exempt from having to contact the prescribing practitioner or his or her office, the pharmacist may extend the prescription by up to a 30-day supply, and certain other requirements also do not apply. The bill provides that this alternative authorization to extend a prescription order also applies beginning on the bill's effective date and continuing until June 30, 2021.

Cremation permits and electronic signature of death certificates

Under current law, a coroner or medical examiner must view the corpse of a deceased person before issuing a cremation permit, and the corpse may not be cremated within 48 hours after the death unless the death was caused by a contagious or infectious disease. Under this bill, until the conclusion of a national emergency declared by the U.S. president under 50 USC 1621 in response to the 2019 novel coronavirus, if a physician, coroner, or medical examiner has signed the death certificate of a deceased person and listed COVID-19 as the cause of death, a coroner or medical examiner must issue a cremation permit without viewing the corpse of a deceased person and a coroner or medical examiner must issue the permit within 48 hours after the time of death. The bill also requires that if the underlying cause of a death is determined to be COVID-19, the person required to sign the death certificate shall provide an electronic signature on the death certificate within 48 hours after the death occurs. These changes to the requirements were enacted in 2019 Wisconsin Act 185, but applied only during the state of emergency related to public health declared on March 12, 2020.

Child Care and Development Fund block grant funding

Under this bill, federal Child Care and Development Fund block grant funds received by the state under the federal Consolidated Appropriations Act of 2021 are credited to federal block grant appropriations, and the purposes for the expenditure of those funds are subject to passive review by the Joint Committee on Finance.

Immunity for health care providers during COVID-19 response

2019 Wisconsin Act 185 provided immunity from civil liability for health care professionals and providers and employees, agents, or contractors of those professionals or providers for death, injury, or damages caused by actions or omissions taken during the state of emergency related to public health declared by the governor in response to COVID-19 on March 12, 2020, and for 60 days following the termination of the state of emergency, which ended July 10, 2020. To be immune from civil liability, the actions or omissions must not involve reckless or wanton conduct or intentional misconduct and must relate to health services provided or not provided in good faith or be substantially consistent with either a direction, guidance, recommendation, or other statement made by a federal, state, or local office or any published guidance of DHS or the federal Department of Health and Human Services relied upon in good faith. The bill continues the immunity from civil liability beginning on July 10, 2020, during any public health emergency declared by the secretary of the federal Department of Health and Human Services, and until 90 days after the termination of the emergency declared by the federal secretary. The circumstances under which this immunity applies are the same as under Act 185. The immunity extended under the bill does not apply to actions filed before the bill goes into effect.

Nursing home or assisted living facility visitation by essential visitors

The bill allows a nursing home or assisted living facility resident, or his or her guardian or health care agent, to designate an essential visitor to visit and provide support for the resident. The resident's guardian or health care agent under a power of attorney is also considered an essential visitor. A nursing home or assisted living facility must allow at least one essential visitor, who agrees to comply with the public health policies of the nursing home or assisted living facility, to enter the nursing home or assisted living facility to visit the resident in compassionate care situations. The nursing home or assisted living facility may refuse access to an essential visitor who refuses to comply with those public health policies. If the federal Centers for Medicare and Medicaid Services issues guidance that restricts visitation more than this bill does, a nursing home or assisted living facility is allowed to comply with that guidance instead of the bill. The requirement to allow visitation of an essential visitor in this bill applies when the nursing home or assisted living facility limits visitors to the nursing home or assisted living facility due to an outbreak or epidemic of communicable disease in the community.

Insurance

Coverage limits on certain prescription drugs

The bill prohibits insurers that offer health insurance, self-insured governmental health plans, and pharmacy benefit managers from requiring, until June 30, 2021, prior authorization for early refills of a prescription drug or otherwise restricting the period in which a prescription drug may be refilled and from imposing a limit on the quantity of prescription drugs that may be obtained if the quantity is no more than a 90-day supply. These prohibitions do not apply if the prescription drug is a controlled substance. The bill reinstates the prohibitions that were enacted in 2019 Wisconsin Act 185 but that expired with the termination of the state of emergency related to public health declared on March 12, 2020, by the governor.

Liability insurance for physicians and nurse anesthetists

The bill specifies that, until the earlier of the conclusion of a national emergency declared by the U.S. president in response to the 2019 novel coronavirus or June 30, 2021, a physician or nurse anesthetist for whom Wisconsin is not a principal place of practice but who is temporarily authorized to practice in Wisconsin may fulfill financial responsibility requirements by filing with the commissioner of insurance a certificate of insurance for a policy of health care liability insurance issued by an insurer authorized in a certain jurisdiction specified in the bill. Additionally, under those same circumstances, the physician or nurse anesthetist may elect to be covered by Wisconsin's health care liability laws. These liability insurance provisions were enacted in 2019 Wisconsin Act 185 but expired with the expiration of the state of emergency related to public health declared on March 12, 2020, by the governor.

Out-of-network costs related to health coverage

The bill prohibits, until the conclusion of a national emergency declared by the U.S. president in response to the 2019 novel coronavirus or June 30, 2021, whichever is earlier, a defined network plan, including a health maintenance organization, or preferred provider plan from requiring an enrollee of the plan to pay more for a service, treatment, or supply provided by an out-of-network provider than if the service, treatment, or supply is provided by an in-network provider. This prohibition applies to any service, treatment, or supply that is related to the diagnosis of or treatment for COVID-19 and that is provided by an out-of-network provider because a participating provider is unavailable due to the emergency. For a service, treatment, or supply provided under those circumstances, the bill requires the plan to reimburse the out-of-network provider at 225 percent of the federal Medicare program rate. Also, under those circumstances, any health care provider or facility that provides a service, treatment, or supply to an enrollee of a plan but is not a participating provider of that plan shall accept as payment in full any payment by a plan that is at least 225 percent of the federal Medicare program rate and may not charge the enrollee an amount that exceeds the amount that the provider or facility is reimbursed by the plan. Similar prohibitions and requirements to these were created in 2019 Wisconsin Act 185, but those prohibitions and requirements applied only during the state of emergency related to public health declared on March 12, 2020, by the governor and for 60 days following the termination of that state of emergency.

Coverage of COVID-19 testing without cost sharing

Current law, as created in 2019 Wisconsin Act 185, requires health insurance policies and self-insured governmental health plans to cover, until March 13, 2021, testing for COVID-19 without imposing any copayment or coinsurance. A health insurance policy is referred to in the bill as a disability insurance policy. The bill extends the Act 185 coverage requirement for testing and adds a requirement to cover vaccines against SARS-CoV-2, which causes COVID-19 until the earlier of the conclusion of a national emergency declared by the U.S. president in response to the 2019 novel coronavirus or June 30, 2021.

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