AB1: Bill Text

LRB-1132/1

ALL:all

2021 - 2022 LEGISLATURE

2021 Assembly BILL 1

January 4, 2021 - Introduced by Representatives Vos, Summerfield, James, Tusler, Cabral-Guevara, Born, Steineke, Wichgers, Magnafici, Dallman, Katsma, Callahan, Kuglitsch, J. Rodriguez, Vorpagel, Snyder, Duchow, Schraa, Petersen, Thiesfeldt, Swearingen, Zimmerman, Edming, Wittke and Moses. Referred to Committee on Health.

AB1,2,2 An Act to repeal 153.23 (1); to renumber and amend 153.23 (2) and 450.11 (5) (br) 3.; to amend 13.101 (4d), 40.26 (5m), 40.26 (6) (intro.), 70.511 (2) (a), 74.35 (5) (c), 74.37 (4) (b), 108.04 (3) (b), 108.062 (20) (intro.), 108.07 (5) (bm) 1., 108.07 (5) (bm) 2. a., 118.133 (1) (a), 118.133 (1) (b), 118.133 (2), 252.02 (3), 323.19 (3), 440.15, 450.01 (11m), 450.01 (21s), 450.02 (1), 450.035 (2g), 450.035 (2i) (a), 450.035 (2i) (b), 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) and 632.895 (16v) (a) (intro.); and to create 49.45 (3) (e) 9m., 49.45 (4r), 49.45 (39n), 50.083, 50.33 (2d), 50.36 (5m), 50.49 (6m) (d), 101.643, 103.375, 108.07 (5) (bm) 1m., 252.02 (5m), 252.03 (2g), 252.03 (2m), 440.08 (2) (a) 69g., 440.094, 447.01 (1e), 447.01 (8) (az), 447.01 (11), 447.059, 450.01 (13w), 450.01 (23) (p), 450.03 (1) (fm), 450.075, 450.11 (5) (br) 3. b., 609.205 (3m), 655.0025 and 895.476 of the statutes; relating to: state government actions to address the 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 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, 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 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

Full-time open enrollment; applications for the 2020-21 and 2021-22 school years

Under current law, a pupil may attend a public school, including a virtual charter school, in a school district other than the pupil's resident school district (nonresident school district) under the full-time open enrollment program (OEP). For purposes of the OEP, a virtual charter school is located in the school district that authorized the virtual charter school.

The standard OEP application procedure requires a pupil's parent to apply to a nonresident school district during the spring semester immediately preceding the school year in which the pupil wishes to attend the nonresident school district. However, current law provides an alternative application procedure that allows a pupil's parent to apply to a nonresident school district at any time during the school year if certain circumstances apply. One of the circumstances under which a pupil may apply using the alternative application procedure is if the parent of the pupil and the nonresident school board agree that attending school in the nonresident school district is in the best interests of the pupil. Current law allows a resident school board to deny a pupil's application if the resident school board determines the circumstance relied upon by the pupil to use the alternative application procedure does not apply to the pupil. Current law also provides an appeal process in the event the resident school board denies a pupil's application.

Under the bill, during the 2020-21 and 2021-22 school years, if a pupil submits an OEP application using the alternative application procedure on the basis of the pupil's parent and nonresident school board agreeing that attending school in the nonresident school district is in the best interests of the pupil, the pupil's resident school board may not deny the application for any reason.

Current law also limits the number of nonresident school boards to which a pupil may apply to attend a public school under the OEP to no more than three nonresident school boards in any school year. Under the bill, this limitation does not apply to 1) applications for the 2020-21 school year that are submitted under the alternative application procedure; or 2) applications for the 2021-22 school year that are submitted under the standard or alternative application procedure.

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. 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.

School board requirements for virtual instruction

Beginning on January 11, 2021, and ending on the last day of the 2021-22 school year, a school board may not provide virtual instruction to pupils instead of in-person instruction unless approved by a two-thirds vote of the school board members. Each school board approval of virtual instruction is valid for 14 days. A school board may reauthorize the virtual instruction only by subsequent two-thirds votes of the school board members.

Interscholastic athletic association; transfer rules in the 2020-21 and 2021-22 school years

This bill prohibits a school district from being a member of an interscholastic athletic association in the 2021-22 school year unless, during the 2020-21 and 2021-22 school years, the association allows an exception to the association's transfer rules based on the manner in which educational programming was delivered during the 2020-21 and 2021-22 school years. Specifically, under the bill, for purposes of eligibility in the 2020-21 and 2021-22 school years, the interscholastic athletic association must consider the method by which educational programming was delivered during the 2020-21 or 2021-22 school year to be an extenuating circumstance that justifies transferring schools. Under the bill, the “method of delivering educational programming” includes virtual instruction, in-person instruction, and a combination of both virtual and in-person instruction. Additionally, if a waiver is granted based on the method of delivering educational programming in the 2020-21 or 2021-22 school year, the association must allow the pupil to play any level of athletics, including varsity athletics.

Interscholastic athletics and extracurricular activities; virtual charter school pupils

The bill allows a pupil who attends a virtual charter school to participate in interscholastic athletics and extracurricular activities in the pupil's resident school district.

Under current law, a school board must allow a homeschooled pupil who resides in the school district to participate in interscholastic athletics and extracurricular activities. Current law further provides that a school board may charge a homeschooled pupil a participation fee on the same basis that the school board charges participation fees to pupils enrolled in the school district. The bill extends these provisions to pupils who attend a virtual charter school. Under the bill, a school board may charge a virtual charter school pupil a participation fee on the same basis it charges participation fees to pupils enrolled in the school district.

employment

Unemployment insurance; plan to address claims backlog

The bill requires the Department of Workforce Development to, within 30 days of the effective date of the bill, publish a plan to address the backlog of unemployment insurance claims, and also requires DWD to extend the hours of the unemployment insurance call center to 12 hours per day, seven days per week, until the backlog has been addressed. Under the bill, the backlog is considered to be addressed when the number of weekly claims in process are at levels comparable to those in January and February 2020.

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 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. The bill provides that these modifications also apply while a national emergency declared by the U.S. president in response to the 2019 novel coronavirus remains in effect, but not later than July 3, 2021.

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.

Prohibiting vaccination against SARS-CoV-2 as condition of employment

This bill prohibits an employer from requiring an individual to receive a vaccine against the SARS-CoV-2 coronavirus or show evidence of having received such a vaccine.

health and human services

Medical Assistance payment for hospitals for nursing facility care

The bill requires DHS 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.

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.

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

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 pharmacist acting under the scope of practice, which currently includes the administration of vaccines by pharmacists that meet certain criteria. DHS must certify pharmacists as Medical Assistance providers as necessary to cover and reimburse pharmacists 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.

Utilization data in the Medical Assistance program

This bill requires DHS to provide, semiannually, to any health care data aggregator all fee-for-service and managed care encounter claims data and data specifications for the Medical Assistance program. A health care data aggregator is a data organization or entity that collects, analyzes, and disseminates health care information under current law and requests that DHS provide the data to it. Current law provides that a data organization contracts with the state to analyze and report health care claims information collected from insurers and administrators and provides that an entity is under contract to collect, analyze, and disseminate claims and other health information from hospitals and ambulatory surgery centers. Either the data organization, the entity, or both could be a health care data aggregator under the bill.

Under the bill, after DHS provides a health care data aggregator with the Medical Assistance data, the health care data aggregator, within five days or a longer period specified by DHS, must create a data set with information that has eliminated the ability to trace the information back to a specific patient and then destroy the original data. Once the patient information cannot be traced back to a specific patient the information is known as de-identified health information. The health care data aggregator must make the de-identified data set available to the public and may disseminate custom data sets and reports containing de-identified health information. This de-identified health information must meet the requirements in the federal Health Insurance Portability and Accountability Act, or HIPAA, for ensuring that patient information is not individually identifiable. HIPAA generally requires that health information that identifies a specific individual be kept confidential except for treatment, billing, and other limited purposes but allows the use of health information if it cannot identify the individual. The health care data aggregator, in its treatment of the Medical Assistance data received under the bill, must comply with the same patient confidentiality requirements as apply to its collection of data under current law.

Local health officer orders in response to communicable disease outbreak

Currently, local health officers have the statutory authority to do what is reasonable and necessary for the prevention and suppression of disease and forbid public gatherings when necessary to control outbreaks or epidemics among other public health powers. In addition, local health officers must take all measures necessary to prevent, suppress, and control communicable diseases and report those measures to the appropriate governing body along with the progress of the communicable disease. Under this bill, a local health officer may enforce an order to close or restrict capacity of businesses to control outbreaks and epidemics of the 2019 novel coronavirus for a maximum of 14 days unless the governing body of the local governmental unit in which the order is intended to apply approves an extension of the order. Each extension may not exceed 14 days.