Amendment SSA2-AB1

SENATE SUBSTITUTE AMENDMENT 2, TO ASSEMBLY BILL 1

January 12, 2021 - Offered by Senators Roys, Agard, Erpenbach, Johnson, Larson and Smith.

AB1-SSA2,2,9 An Act to repeal 49.45 (2p), 49.45 (23), 108.04 (2) (h) and 108.04 (12) (f); to renumber and amend 450.11 (5) (br) 3.; to amend 20.435 (4) (jw), 40.22 (1), 40.22 (2m) (intro.), 40.22 (2r) (intro.), 40.22 (3) (intro.), 40.26 (1m) (a), 40.26 (1m) (b), 40.26 (5m), 40.51 (8), 40.51 (8m), 49.45 (23b) (title), 49.45 (23b) (b), 49.45 (23b) (c), 49.45 (23b) (e), 49.471 (4) (a) 4. b., 49.686 (3) (d), 66.0137 (4), 102.565 (6), 103.025 (title), 103.10 (1) (c), 103.10 (2) (c), 103.10 (5) (a), 103.10 (8), 103.10 (9) (a) and (b), 103.10 (9) (c) 4., 103.10 (9) (d), 103.10 (12) (d), 108.04 (3) (b), 108.062 (2) (d), 108.062 (20) (intro.), 108.062 (20) (c), 108.07 (5) (bm) 3. b., 115.385 (6), 115.415 (1) (b), 120.13 (2) (g), 140.145 (10) (a), 140.145 (10) (b), 185.983 (1) (intro.), 323.19 (4) (b), 323.2912, 323.2913, 440.15, 450.01 (11m), 450.01 (21s), 450.02 (1), 450.11 (5) (br) 2. d., 609.205 (2) and (3) (intro.) and (a) and 632.895 (16v) (a) (intro.); to repeal and recreate 115.437 (2) (b) and 632.895 (14g) (b); and to create 16.34, 20.115 (3) (b), 20.435 (1) (dw), 20.435 (4) (bu), 20.505 (1) (bk), 20.505 (1) (ft), 20.835 (2) (an), 40.26 (7), 49.471 (1) (cr), 49.471 (4) (a) 8., 49.471 (4g), 49.681, 73.03 (75), 93.485, 102.03 (7), 103.025 (1) (bm), 103.025 (3), 103.10 (1) (dm), 103.10 (4m), 252.02 (8), 323.19 (3m), 323.19 (3p), 323.267, 440.08 (2) (a) 69g., 450.01 (13w), 450.01 (23) (p), 450.075, 450.11 (5) (br) 3. b., 609.719, 609.887, 632.871, 632.895 (14f) and 655.0025 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, granting rule-making authority, and making an appropriation.

Analysis by the Legislative Reference Bureau

Agriculture

Food security initiative grant program

This bill requires the Department of Agriculture, Trade and Consumer Protection to administer a food security initiative, under which it must provide grants to food banks, food pantries, and other nonprofit organizations fighting food insecurity to either adapt to challenges posed by the COVID-19 public health crisis or purchase Wisconsin food products.

Education

Per pupil aid; 2020-21 pupil enrollment

Under current law, a school district's pupil enrollment is a factor in the per pupil aid calculation, which is a categorical aid paid to school districts. Per pupil aid is funded from a sum sufficient appropriation and is not considered for purposes of revenue limits.

The amount of per pupil aid paid to a school district is calculated using a three-year average of the number of pupils enrolled in the school district and a per pupil amount set by law. In the 2020-21 school year, the calculation for the amount of per pupil aid paid to a school district is $742 times the average of the school district's pupil enrollment in the 2018-19, 2019-20, and 2020-21 school years.

Under the bill, for purposes of calculating per pupil aid in the 2020-21, 2021-22, and 2022-23 school years, a school district's pupil enrollment in the 2020-21 school year is the school district's pupil enrollment in the 2019-20 or 2020-21 school year, whichever is greater.

Pupil assessments and school and school district accountability report; 2020-21 school year exemption

Under the bill, requirements to administer various pupil assessments do not apply in the 2020-21 school year.

Under current law, school boards, independent charter schools, private schools participating in the Milwaukee Parental Choice Program, Racine Parental Choice Program, or Wisconsin Parental Choice Program, and, under some circumstances, a private school participating in the Special Needs Scholarship Program are required to annually administer assessments adopted by the Department of Public Instruction to pupils in the fourth, eighth, ninth, tenth, and eleventh grades. These assessments are commonly referred to as the Wisconsin Student Assessment System, which includes the Wisconsin Forward Exam, ACT ASPIRE, the ACT with Writing, and Dynamic Learning Maps. The requirements to administer the WSAS did not apply in the 2019-20 school year. Under the bill, the requirements to administer the WSAS do not apply in the 2020-21 school year.

Current law also requires school boards, independent charter schools, and private schools participating in a parental choice program to annually administer a standardized reading test developed by DPI to third grade pupils. The requirements to administer the third grade standardized reading test did not apply in the 2019-20 school year. Under the bill, the requirements to administer the third grade standardized reading test do not apply in the 2020-21 school year.

Under current law, each school board and independent charter school must annually administer a reading readiness assessment selected by the school board or independent charter school to pupils in four-year-old kindergarten through second grade. The requirements to administer a reading readiness assessment applied in the 2019-20 school year. Under the bill, the requirements to administer a reading readiness assessment do not apply in the 2020-21 school year.

Under current law, school boards and independent charter schools are required to evaluate teachers and principals using an educator effectiveness evaluation system that considers pupil performance on statewide assessments. School boards and independent charter schools were prohibited from considering pupil performance on statewide assessments in evaluating teachers and principals in the 2019-20 school year. Under the bill, the prohibition against considering pupil performance on statewide assessments in evaluating teachers and principals also applies in 2020-21 school year.

School and school district accountability report

Under current law, DPI is required to publish a school and school district accountability report for the previous school year by November 30. To measure school performance and school district improvement for purposes of the report card, particularly measures related to pupil achievement in reading and math, DPI uses data derived from pupil performance on the WSAS.

Under current law, schools and school districts were not required to administer the WSAS in the 2019-20 school year and DPI is prohibited from publishing a school and school district accountability report in the 2020-21 school year. Under the bill, schools and school districts are not required to administer the WSAS in the 2020-21 school year and DPI is prohibited from publishing a school and school district accountability report in the 2021-22 school year.

Employment

Hazard pay and paid medical leave

The bill requires employers to provide hazard pay to certain health care workers during a public health emergency. The bill also requires employers to provide at least 15 days of paid medical leave for certain health care workers who contract a communicable disease. Under the bill, an employer may request a reimbursement from the Department of Administration for the paid medical leave and hazard pay. The hazard pay and paid medical leave requirements in the bill also apply until December 31, 2021, regardless of whether a public health emergency has been declared by the governor or whether the secretary of health services has issued an order.

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 December 31, 2021. Under current law, a limited-term appointment may not exceed 1,040 hours per year.

Use of annual leave

Under the bill, a state employee may take annual leave during the period beginning on March 12, 2020, and ending on December 31, 2021, even if the employee has not completed the first six months of the employee's probationary period. Under current law, an employee may not take annual leave during the first six months of the employee's probationary period.

Unemployment Insurance; Benefit charging

Current law, as enacted in 2019 Wisconsin Act 185, requires the Department of Workforce Development, when processing claims for unemployment insurance 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 as is normally provided. Instead, the benefits for those weeks are, subject to numerous exceptions, to be charged in one of two ways:

1. To the balancing account of the unemployment reserve fund, which is a pooled account financed by employers that pay contributions (taxes) and is used to pay benefits that are not chargeable to any employer's account.

2. To the unemployment interest and penalties appropriation account for reimbursable employers, which are employers that do not pay contributions but instead reimburse DWD for benefits directly.

The bill allows the secretary of administration to transfer moneys from any executive branch appropriation to the unemployment interest and penalties appropriation account for the purpose of paying the benefits described above attributable to reimbursable employers under Act 185. The transfers may not exceed the amount necessary to make those payments.

Unemployment Insurance; 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 unemployment insurance 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. The bill extends the applicability of these modifications to January 1, 2022. The bill also adds an additional modification, which is made effective permanently, to allow work-share plans to remain in effect for 12 months in a five-year period, instead of six months.

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. The bill extends the end date for suspending the one-week waiting period to January 1, 2022.

Unemployment Insurance; Registration for work and work search waivers

Under current law, a claimant for UI benefits is generally required to register for work and to search for work each week in order to remain eligible, but DWD is required to waive these requirements under certain circumstances. Under current law, DWD has limited rule-making authority to modify the availability of waivers or establish additional waivers if necessary to comply with a requirement under federal law or if specifically allowed under federal law. The bill allows DWD to promulgate rules that remain in effect until January 1, 2022, that provide waivers of the registration for work or work search requirements under additional circumstances.

Unemployment Insurance; Receipt of Social Security Disability Insurance benefits

Under current law, in any week in any month that a claimant is receiving a benefit under the federal social security disability program, that claimant is ineligible for UI benefits. The bill repeals that prohibition and allows an otherwise eligible claimant to receive both federal social security disability benefits and unemployment insurance benefits for the same period.

Worker's compensation; Injury to critical workers

The bill provides that, for the purposes of worker's compensation, an injury caused to a critical worker by COVID-19 during the period beginning on the effective date of the bill and ending on December 31, 2021, is presumed to be caused by the individual's employment. The presumption requires a diagnosis or positive test for COVID-19 and may be rebutted by specific evidence that the injury was caused outside of employment. Under the bill, the secretary of health services determines which workers are considered critical workers during the specified period.

FINANCIAL INSTITUTIONS

Remote notarization of estate planning documents

The bill allows a notary public, through the end of calendar year 2021, to perform notarizations involving estate planning documents for individuals not physically present before the notary public.

Current law generally requires a person to physically appear before a notary public in order for the notary public to perform a notarial act, but provisions in 2019 Wisconsin Act 125 allow a notary public, using technology, to notarize documents for persons not physically present with the notary public (remotely located individuals) if certain requirements are satisfied. This authority under Act 125 for a notary public to perform a notarial act for a remotely located individual does not extend to a transaction involving estate planning documents such as wills and trusts.

The bill allows a notary public, through the end of calendar year 2021, to perform for a remotely located individual a notarial act involving estate planning documents such as wills and trusts.

HEALTH AND HUMAN SERVICES

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 to the end of 2021.

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 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 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.

Reimbursement for outpatient services provided by hospitals

The bill requires DHS to provide reimbursement 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 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. The reimbursement 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.

State coverage for treatment of uninsured health care workers

The bill requires DHS to provide state payment for the testing and treatment of health care workers who have been diagnosed with or are under investigation of having COVID-19 or any other communicable disease. State coverage is available only if the individual has no other form of coverage or funding for treatment available from insurance, a health care coverage program, or under any grant, contract, or other contractual arrangement. For purposes of the state coverage for uninsured health care workers, the treatment that must be covered is any treatment that is medically necessary and reasonably related to COVID-19 or any other communicable disease or complications from COVID-19 or other communicable disease.

Medicaid expansion

The bill accepts the Medicaid expansion by changing the family income eligibility level to up to 133 percent of the federal poverty line for parents and caretaker relatives under BadgerCare Plus and for childless adults currently covered under BadgerCare Plus Core and who are incorporated into BadgerCare Plus in the bill. BadgerCare Plus and BadgerCare Plus Core are programs under the state's Medical Assistance program, which provides health services to individuals who have limited financial resources. The federal Patient Protection and Affordable Care Act allows a state to receive an enhanced federal medical assistance percentage payment for providing benefits to certain individuals through a state's Medical Assistance program. The bill requires DHS to comply with all federal requirements and to request any amendment to the state Medical Assistance plan, waiver of Medicaid law, or other federal approval necessary to qualify for the highest available enhanced federal medical assistance percentage for childless adults under the BadgerCare Plus program. DHS must ensure that any increased funding resulting from the bill is used to improve access to and affordability of health care and to support health care quality for Wisconsin residents.

Under current law, certain parents and caretaker relatives with incomes of not more than 100 percent of the federal poverty line, before a 5 percent income disregard is applied, are eligible for BadgerCare Plus benefits. Under current law, childless adults who 1) are under age 65; 2) have family incomes that do not exceed 100 percent of the federal poverty line, before a 5 percent income disregard is applied; and 3) are not otherwise eligible for Medical Assistance, including BadgerCare Plus, are eligible for benefits under BadgerCare Plus Core. The bill eliminates the childless adults demonstration project known as BadgerCare Plus Core.

Orders prohibiting evictions and foreclosures

The bill allows DHS to issue an order prohibiting the commencement of actions for eviction or foreclosure for any period before January 1, 2022.

Funding for Department of Health Services for COVID-19

The bill provides funding to DHS for community testing, contact tracing, vaccinations, and public awareness related to COVID-19.

Child care financial assistance program

The bill appropriates $25,000,000 to the Department of Children and Families to give financial assistance to providers of child care services that have lost income as a result of the 2019 novel coronavirus.

housing

Rental assistance funding

The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 provided federal funding for a rental assistance program administered by DOA. Under that program, Wisconsin residents suffering a loss of income due to the 2019 novel coronavirus, and who met income and certain other eligibility requirements, could apply for assistance in paying their rent. The bill appropriates $25,000,000 of general purpose revenue for that program.

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, before January 1, 2022, prior authorization for early refills of a prescription drug or otherwise restricting the period of time 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, before January 1, 2022, 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.

Out-of-network costs related to health coverage

The bill prohibits, through December 31, 2021, 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 COVID-19 pandemic. For a service, treatment, or supply provided under those circumstances, the bill requires the plan to reimburse the out-of-network provider at 250 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 250 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 were created in 2019 Wisconsin Act 185, except that the reimbursement rate in Act 185 for an out-of-network provider was 225 percent of the federal Medicare program rate. The Act 185 prohibitions and requirements applied only during the state of emergency related to public health declared on March 12, 2020, and for 60 days following the termination of that state of emergency.

Coverage of COVID-19 related costs without cost sharing

The bill requires every health insurance policy and every self-insured governmental health plan that generally covers testing for and treatment of infectious disease to provide coverage of testing for, diagnosis and treatment of, and administration of any vaccination developed to prevent COVID-19 without imposing any copayment or coinsurance. This requirement applies through December 31, 2021. A health insurance policy is referred to in the bill as a disability insurance policy. Current law 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.

Insurance coverage for health care workers

The bill requires every health insurance policy and every self-insured governmental health plan that generally covers testing for and treatment of infectious disease to provide coverage of testing for and treatment of COVID-19 or any other communicable disease for a frontline health care worker who has been diagnosed with or is under investigation of having COVID-19 or any other communicable disease without imposing any copayment or coinsurance. A health insurance policy is referred to in the bill as a disability insurance policy. For purposes of required insurance coverage, the treatment that must be covered is any treatment that is medically necessary and reasonably related to COVID-19 or any other communicable disease or complications from COVID-19 or other communicable disease.

Coverage parity for telehealth services

The bill prohibits a health insurance policy or a self-insured health plan of the state or a county, city, village, town, or school district from denying coverage for a treatment or service provided through telehealth if that treatment or service is covered under the policy or plan when provided in person by a health care provider. This prohibition applies through December 31, 2021. Health insurance policies are known as disability insurance policies in the bill. Telehealth is a practice of health care delivery, diagnosis, consultation, treatment, or transfer of medically relevant data by means of audio, video, or data communications that are used either during a patient visit or a consultation or are used to transfer medically relevant data about a patient.

safety and professional services

Optional licensure of third-party logistics providers

The bill creates an optional license for third-party logistics providers that are located in the state or are located outside the state but provide third-party logistics provider services in the state. A third-party logistics provider is defined under current law as a person that contracts with a prescription drug manufacturer to provide or coordinate warehousing, distribution, or other services on behalf of the manufacturer but that does not take title to the manufacturer's prescription drug or have general responsibility to direct the prescription drug's sale or disposition.

The bill requires an applicant for a third-party logistics provider license to submit certain information prior to licensure, including proof of a recent facility inspection, and a personal statement relating to a designated representative of the facility. The license created by the bill will no longer apply if the federal Food and Drug Administration establishes a licensing program for third-party logistics providers under federal law and the Pharmacy Examining Board determines that state licensure is not required for a resident third-party logistics provider to provide third-party logistics services in another state.