1. Introduction

 By the time you read this article, something related to COVID-19 will have significantly changed. It could be case counts - currently they are at historically high levels in Wisconsin. There could be new orders from the Governor or his administration, with legal challenges in tow. The election may incent a lame duck session to tackle more COVID-19 related legislation. What will not change is the fact that the emergence of COVID-19 earlier this year put a halt on typical lawmaking in Wisconsin and thrust policy reacting to the novel virus to the forefront.

Policy changes made to manage the COVID-19 outbreak came in the form of emergency orders and 2019 Wisconsin Act 185.[2] On March 12, 2020, when Governor Tony Evers declared the health emergency in Executive Order No. 72[3], he officially gave the Department of Health Services (DHS) the authority to lead the response to the pandemic.[4] DHS Secretary Designee Andrew Palm (SD Palm) started to implement basic adjustments the very next day, while the legislature and the Governor started working on a bill that would provide even more clarity on how government and the regulated community would deal with COVID-19.

We are all familiar with the orders to close schools[5], prohibit mass gatherings[6], and prohibit nonessential travel while designating certain businesses as “essential”[7] because they impacted every single one of us. While most of us were wrestling with life under the restrictions, other orders of critical importance were being released. 

1. Emergency Orders

Goods and services. It likely did not dawn on any of us as were frantically scooping up toilet paper and canned goods in the stores that these products needed to be quickly replenished. SD Palm authorized the Department of Transportation, in Emergency Order 2[8] and Emergency Order 14[9], to issue overweight permits to support “efficient transport of groceries and supplies” as it was “essential for all Wisconsinites to have access to basic necessities.”

Childcare facilities. Childcare settings needed to be in operation even while schools were being closed. Daycare facilities had to stay open to serve the needs of frontline health care workers and other families who went to work in essential businesses. Typically, these facilities must meet standards related to appropriate staffing, training and qualifications, recordkeeping, and meals and snacks. Those items were lifted in Emergency Order 3[10], while Emergency Order 6[11] restricted the size of childcare settings. This order also reminded providers and parents that care needed to be maintained with proper social distancing.

Unemployment insurance. As thousands of people lost their jobs and unemployment insurance (UI) benefits had to be distributed, normal qualifications for UI eligibility needed to be addressed. Under most circumstances, a claimant must be considered suitable for work to be eligible for benefits.[12] A beneficiary must also perform four work searches a week.[13] Emergency Order 7[14] allowed for temporary exceptions to work-related requirements and allowed the public health emergency to offset four work searches.

Prisons and juvenile facilities. With COVID-19 cases increasing it did not make sense to add more people to prisons or juvenile facilities. Emergency Order 9[15] ordered the Department of Corrections to “implement a moratorium on admissions to the state prisons and juvenile facilities operated by the Department of Corrections to mitigate the spread of COVID-19.” Governor Evers also gave the Secretary of Corrections the authority to lift or rescind the order.

Schools. Directing statewide school closure was SD Palm’s first Emergency Order.[16] This order was going to put schools in violation of requirements related to hours of direct pupil instruction.[17] Emergency Order 10[18] suspended those requirements but also allowed, amongst other things, students in teacher preparatory programs to graduate without meeting certain testing requirements.

Hardship. COVID-19 created unanticipated hardships for people including hindering the ability to pay rent or utility bills. Service rules for electrical, gas, and water utilities were suspended in Emergency Order 11[19] and a temporary ban on evictions and foreclosures was issued in Emergency Order 15[20]. During the duration of the public health emergency, people did not have to worry about electricity or water being turned off when they were adjusting to lost wages. Homeowners and renters would not face evictions and homelessness because of missed monthly payments.

Health care. The heavily regulated healthcare workforce needed relief to best serve COVID-19 patients. Multiple orders were required to maintain appropriate staffing and services throughout the emergency order. Emergency Order 16[21] allowed for interstate reciprocity so that out-of-state providers could practice in Wisconsin prior to getting a license from the Department of Safety and Professional Services (DSPS) and specified that doctors practicing telemedicine must meet the requirements set out in Med 24[22], regulations on how providers use telemedicine in Wisconsin. DSPS also needed to search out health care providers with recently expired licenses and let them know they are eligible for renewal and can return to the workforce for the emergency. 

Emergency Order 20[23] expanded Emergency Order 16 to cover other providers like speech-language pathologists, audiologists, and massage therapists. This order also clarified that if a provider started working at a health care facility under exceptions created by Emergency Order 16, the health care facility where the provider worked must notify DSPS within ten days of the provider starting to practice.

Emergency Medical Services (EMS), home health agencies, hospices, nursing homes, and other community services providers were given regulatory relief in Emergency Order 21[24]. The flexibilities included relaxing workforce restrictions and requirements, licensure and certification rules, and the waiving of credentialing fees if there was a clear need. 

Department of Safety and Professional Services. Licensed professionals are very familiar with inspections, permits, and the requirements to maintain their license. In the case of a pandemic and the mandatory social distancing, compliance with the rules becomes tricky. Emergency Order 22[25] suspended various rules administered by DSPS to loosen and remove in-person contact requirements for many licensed professionals.

1. 2019 Wisconsin Act 185

On April 14-15, 2020, the Wisconsin Assembly and Senate met in their first ever virtual sessions to pass legislation addressing COVID-19. Governor Evers signed the bill that made many simple changes to state programs, with some of the provisions applying for a limited timeframe. 2019 Wisconsin Act 185 was a recognition by the Governor and the legislature that government, at all levels, needed flexibility to best respond to the pandemic. The main provisions in the bill follow. 

Administration. Act 185 allows the Department of Administration to transfer employees among agencies, allows DOA to adjust limited term employee hours, allows state employees to take annual leave before it has been accrued, waives requirements for timely filing of adverse employment complaints by state employees and related in-person meeting requirements, allows Wisconsin Retirement System annuitants to reenter critical positions during the emergency without suspending their annuities, and allows state entities to waive in-person requirements. 

Retail. The Act prohibits returns of food, cleaning supplies, personal care products, or paper product.

Utilities. It authorizes the Board of Commissioners of Public Lands to offer loans to municipal utilities during the public health emergency, and allows households to apply for heating assistance under DOA’s low-income energy assistance program any time in 2020 (normally, this program is limited to September-May).

 Local government. Act 185 changes requirements for town meetings and board of review meetings.

Liability. It exempts manufacturers, distributors and sellers of emergency medical supplies and equipment that donate or sell their product from civil liability. Entities are exempt from civil liability only if the product was sold or donated at a price that does not exceed the cost of production.

Medicaid. The Act allows DHS to suspend current copayment/premium requirements for childless adults under Medicaid in order for Wisconsin to receive the enhanced federal medical assistance percentage, requires DHS to create an incentive-based Medicaid payment system to encourage participation in health information exchange, and requires coverage of vaccines under SeniorCare.

Private insurance. The Act create a “surprise billing” mandate during the COVID-19 emergency that an enrollee cannot be charged more for seeing an out-of-network provider (if an in-network provider is not available) for services related to COVID-19, creates a testing for COVID-19 insurance mandate prohibiting cost sharing, bans prohibitions on early refills, and creates non-discrimination provisions related to COVID-19 diagnosis, i.e., for enrollment, renewal, basis for cancellation, or basis for rates.

Health care providers. Act 185 creates liability protections for health care professionals, prohibits DHS from requiring emergency and ambulance service providers to renew their credentials during the public health emergency, waives license renewal requirements during the public health emergency, allows DSPS to grant temporary credentials to former health care providers and providers from other states, and lowers instructional hour requirements for nurse aides to the federal minimum of 75 hours. 

Other health care provisions. It implements a public health emergency dashboard with information from hospitals and surgery centers and allows pharmacists to extend certain prescription orders during the public health emergency

Education. It waives requirements for the Department of Public Instruction (DPI) to publish school accountability reports for 2019-20, waives pupil assessments mandated by state law for 2019-20, requires school boards to submit to DPI reports on virtual learning, waives hours of instructions for private school choice programs and extends the enrollment period for school choice, and allows DPI to waive other statutes or rules related to parental choice, charter schools, or the Special Needs Scholarship program.

Tax. The Act allows municipalities to waive interest and penalty payments for property taxes until October 1, 2020, allows the Department of Revenue to waive other tax penalties if persons failed to remit taxes due to COVID-19, and conforms Wisconsin tax code to changes from the federal coronavirus bills.

Workforce development. The Act temporarily suspends the one-week waiting period for unemployment insurance (UI) benefits, provides that UI claims related to COVID-19 will not be charged to the employer’s UI account as normally provided, suspends certain limitations of the state work-share program, and suspends employee records inspection requirements during a public health emergency.

Worker’s compensation. It creates a rebuttable presumption for first responders that an injury sustained during the public health emergency was caused by the individual’s employment, if the employee has been diagnosed with COVID-19.

Economic development. The Act requires the Wisconsin Economic Development Corporation to submit a report to the governor and legislature by June 30, 2020 on a plan to support major industries that have been adversely affected by COVID-19, including tourism, manufacturing, construction, retail, agriculture, and services.

Other. Act 185 allows the legislature, state agencies, and local governments to suspend deadlines and training requirements during the public health emergency.

1. Conclusion

COVID-19 brought with it controversial policy changes. Differing opinions on the Safer at Home orders, safe elections and face mask requirements have left the Governor and the republican-led Legislature at extreme odds. It is easy to forget that many of the exemptions and relief provided in the 2020 emergency orders and Act 185 were used as intended for the duration of the public health emergency. Together the Governor and the legislature altered rules and regulations to encourage “business as usual” throughout the unprecedented circumstances.

Author Biographies:

 Rebecca R. Hogan is an Owner/Lobbyist at The Hamilton Consulting Group. Rebecca has been developing and advancing policies and related political strategies for Wisconsin lawmakers, administrators and businesses for nearly 20 years. She joined Hamilton Consulting in 2013, where she advocates for clients in policy areas such as health care and workforce development. Before joining Hamilton, Rebecca served as the Director of Health and Human Resources Policy at Wisconsin Manufacturers and Commerce, the state’s largest trade association representing business. Rebecca also spent eight years in the Wisconsin State Senate working in a variety of positions for a number of senators, including the current co-chair of the Joint Committee on Finance, Alberta Darling and vice co-chair, Luther Olsen. Rebecca holds a Bachelor of Arts in Political Science and International Relations from University of Wisconsin-Madison.

Paige Scobee is currently a law student at the University of Texas School of Law. She is a former Lobbyist and Researcher at The Hamilton Consulting Group. She earned her undergraduate degree from the University of Wisconsin-Madison.

[25] Secretary Designee Andrea Palm Emergency Order #22, April 9, 2020 available at https://evers.wi.gov/Documents/COVID19/EMO22-DSPSR....