The State Legislature passed, and the Governor has signed, the state's COVID-19 response package, which includes liability immunity provisions. A late amendment broadens the measure and ensures there is no ambiguity about protections applying to COVID and non-COVID patients alike. 

The legislation also includes provisions that will help the state draw down additional federal dollars for Medicaid as well as a provision related to out of network billing.  

Below is the liability immunity language as adopted.

SECTION 98. 895.4801 of the statutes is created to read:

895.4801 Immunity for health care providers during COVID-19 emergency.

(1) DEFINITIONS. In this section:

(a) “Health care professional” means an individual licensed, registered, or certified by the medical examining board under subch. II of ch. 448 or the board of nursing under ch. 441.

(b) “Health care provider” has the meaning given in s. 146.38 (1) (b) and includes an adult family home, as defined in s. 50.01 (1).

(2) IMMUNITY. Subject to sub. (3), any health care professional, health care provider, or employee, agent, or contractor of a health care professional or health care provider is immune from civil liability for the death of or injury to any individual or any damages caused by actions or omissions that satisfy all of the following:

(a) The action or omission is committed while the professional, provider, employee, agent, or contractor is providing services during the state of emergency declared under s. 323.10 on March 12, 2020, by executive order 72, or the 60 days following the date that the state of emergency terminates.

(b) The actions or omissions relate to health services provided or not provided in good faith or are substantially consistent with any of the following:

1. Any direction, guidance, recommendation, or other statement made by a federal, state, or local official to address or in response to the emergency or disaster declared as described under par. (a). 
2. Any guidance published by the department of health services, the federal department of health and human services, or any divisions or agencies of the federal department of health and human services relied upon in good faith.

(c) The actions or omissions do not involve reckless or wanton conduct or intentional misconduct.

(3) APPLICABILITY. This section does not apply if s. 257.03, 257.04, 323.41, or 323.44 applies. 

Governor Evers announced that the state is seeking volunteers to support Wisconsin's healthcare system during the COVID-19 pandemic. Active and retired healthcare professionals and those who wish to help in non-clinical support positions are encouraged to sign up to volunteer through the Wisconsin Emergency Assistance Volunteer Registry (WEAVR). 

The number of patients in Wisconsin who need to be treated for COVID-19 is expected to surge in the coming weeks. Building a network of available volunteers now will greatly reduce the hardships on hospitals and clinics that would not normally have the capacity to care for the increase in patients. 

Both active and retired healthcare professionals can volunteer for critical clinical roles by entering their information into the WEAVR, a secure, password-protected, web-based volunteer registration system for healthcare and behavioral health professionals. Individuals who are not licensed professionals are also encouraged to sign up to volunteer for non-clinical support positions.

Volunteers will be assigned to locations across Wisconsin to support ongoing efforts related to the COVID-19 national emergency. Those who are willing to travel should note that when they sign up. All volunteers should also be aware that they will be required to complete a background check.

The full copy of the Governor’s press release is available online (link).

Governor Evers announced that Wisconsin has been granted a major disaster declaration for the entire state of Wisconsin, as a result of the COVID-19 pandemic. The declaration provides access to Public Assistance programs for all 72 Wisconsin counties and the state’s federally recognized tribes.

Gov. Evers earlier this week requested that the federal government provide the following programs to support the state’s response: Public Assistance, Direct Assistance, Hazard Mitigation (statewide), and certain Individual Assistance programs; Crisis Counseling, Community Disaster Loans and the Disaster Supplemental Nutrition Program.

The Federal Emergency Management Agency (FEMA) notified the state today that it is granting the request for Public Assistance to help provide reimbursement for emergency protective measures taken by state and local governments in their response to the COVID-19 outbreak. The declaration also authorizes direct Federal Assistance which means when the State and local governments lack the capability to perform or to contract for eligible emergency work and/or debris removal, the State may request that the work be accomplished by a federal agency. The governor’s additional requests for assistance remain under review.

The major disaster declaration covers assistance to public entities, and will cover eligible projects submitted by counties, cities, townships, tribes, and certain private, not-for-profit organizations. Local governments in the declared counties are now eligible for federal assistance and should contact county emergency management directors for further information. Under the program, FEMA provides 75 percent of eligible costs, while the remaining 25 percent is the responsibility of state and local agencies.

The Governor’s full press release is available online (link).

The Department of Health Services announced the creation of the Resilient Wisconsin Initiative (website) on Friday, which provides Wisconsinites with resources to cope with stress and mental health challenges from COVID-19.

DHS recommends that Wisconsinites do the following:

• Get the three goods. That’s good-for-you foods, a good night’s sleep, and a good amount of exercise every day.
• Stay connected to your support system. Reach out to family and friends, colleagues, and community groups in whatever way you can—calls, texts, video chats, and more.
• Spend time away from focusing on COVID-19. Don’t let the pandemic take over what you read, watch, or talk about. And don’t be afraid to ask friends and family to talk about something else.
• Reduce anxiety by reducing your risk. Stay safer at home. Wash your hands for at least 20 seconds. Cover your nose and mouth when you cough or sneeze. Stay at least 6 feet apart while running essential errands at the store, pharmacy, or gas station. Knowing you’re doing everything you can to stay healthy can help you worry less.
• Check in with yourself. Everyone’s reaction to stress is different. Difficulty concentrating or sleeping, irritability, fatigue, and even stomachaches can be normal. But if you find you are overwhelmed or having thoughts of self-harm or suicide, reach out for help right away. Text HOPELINE to 741741 or call the National Suicide Prevention Lifeline at 1-800-273-8255.

Governor Evers signed Executive Order 21 on April 3.  The Order suspends a number of rules related to Opiate Addiction Services.  The order specifically makes changes to:

• Suspends in part DHS 75.15(4)(a) that requires Medical Director accessibility and responsiveness as defined by striking the 45 minute requirement;
• Partially suspends DHS 75.15(4)(b) to allow an RN to be onsite or remote to supervise dosing and other functions delegated by a physician;
• Suspends in part the ratio of patients in service defined in DHS 75.15(4)(d);
• Suspends requirement in DHS 75.15(5)(h) for treatment programs to notify the State authority prior to treating non-residents, self-pay patients;
• Suspends in part DHS 75.13(13)(b) related to drawing blood for testing; and
• Partially suspends DHS 75.15(17)(a) and DHS 75.15.17)(c) related to screens for TB, viral hepatitis and STDs by asking treatment providers to use a risk assessment tool to determine if patients need to be referred for a test and follow-up.

The full executive order is available online (link).

A new Marquette Law School poll of Wisconsin registered voters finds strong support for government actions to control the coronavirus pandemic, even as the poll also shows these actions to be having a substantial financial impact on voters.

The survey found:

• Eighty-six percent say that it was appropriate to close schools and businesses, and restrict public gatherings, while 10 percent say that this was an overreaction to the pandemic;
• A large majority of voters approve of Gov. Tony Evers’ handling of the coronavirus issue, with 76 percent saying they approve and 17 percent saying they disapprove;
• A majority, 51 percent, approve of President Donald Trump’s handling of the pandemic, while 46 percent disapprove;
• Opinion is divided on holding the April 7 spring election as scheduled, with 51 percent saying the date should be moved and 44 percent saying it should be held as scheduled.

A full copy of the survey is available online (link).

Governor Evers today announced a second package of comprehensive legislative proposals that would provide critical investments in health services, support for essential workers, and assistance for Wisconsin families and businesses in response to the COVID-19 pandemic. The governor’s announcement today comes just days after Gov. Evers announced a first piece of legislation, which included additional funding and flexibility for public health professionals and healthcare professionals, a repeal of the one-week waiting period for unemployment insurance, expanding and improving access to telehealth services, among many other proposals.  

As additional needs and issues arise from agencies and stakeholders, the governor is committed to working with legislators to find bipartisan solutions. The governor’s office welcomes the opportunity to hear and consider any proposals that legislators have to address the impacts of COVID-19 on the health and well-being of Wisconsin residents, businesses and communities. 

This package, among many other proposals, includes:  

• Increasing funding for Medicaid providers via supplemental payments and rate increases to support the healthcare system’s response to the public health emergency;  
• Establishing a fund to reduce providers’ uncompensated care costs targeting reimbursement for treatment-related costs for uninsured individuals;
• Establishing a COVID-19 reinsurance program to reduce health insurance premiums; 
• Providing grant funding to provide food assistance and meal delivery;  
• Prohibiting utility cooperatives from disconnecting customers and prohibiting land-lord directed disconnections from rental units during a public health emergency; 
• Ensuring workers receive back payment for any lost unemployment insurance benefits as a result of the delay in suspending the one-week waiting period; 
• Providing supplemental payments to child care providers, if that provider needed to shut down during the public health emergency;  
• Allowing households to apply for heating assistance under the low-income energy assistance program anytime during the 2020 calendar year; 
• Increasing the Earned Income Tax Credit for low-income families;  
• Providing municipalities the flexibility to implement multiple installments of three or more payments for 2020 property taxes;  
• Waiving interest and penalties on delinquent property taxes included in the 2019 payable 2020 tax roll, on and after April 1, 2020;  
• Creating a fund through the Wisconsin Housing and Economic Development Association to provide 6 months of support for prevention of single-family foreclosures and providing refinancing opportunities to current borrowers; and  
• Providing grant funding for small businesses and workers through the Wisconsin Economic Development Corporation. 

The Governor’s first COVID-19-related legislation was introduced last week as LRB-5920 and is available here for review. A brief explanation of LRB-5920 is available here. A brief explanation of the governor’s second round of proposed legislation announced today is available online (link).

Effective for dates of service on and after April 1, 2020, ForwardHealth, which has an expedited emergency supply policy dispensing option available for certain drugs, has expanded the list of drugs available through expedited emergency supply and will allow most drugs to be dispensed in up to a 100-day expedited emergency supply.

A table with the expanded list of drugs available by expedited supply is included below and is also available on the Pharmacy Resources page of the ForwardHealth Portal. Pharmacy providers should continue to follow the current processes for requesting an expedited emergency supply of drugs detailed in the Emergency Medication Dispensing topic (#1399) of the ForwardHealth Online Handbook.

This Action Alert 10 and others are available on the ForwardHealth website (link).

Governor Evers issued the following statement regarding the upcoming April 7 election:

“We have three branches of government to ensure a system of checks and balances, and questions about our elections typically rely on all three playing a role. If I could have changed the election on my own I would have but I can’t without violating state law. I’ve asked the legislature to do its part to ensure a fair and safe election and I hope we can get some clarity as soon as possible. The bottom line is that we have to keep folks safe and we have to make sure everyone who wants to vote has the opportunity to make their voice heard.”

Previously, the governor proposed legislation that had several provisions aimed at making voting easier and more accessible during the public health emergency. A brief summary of that legislation is available here for review. Additionally, he called for the Legislature to act on this issue in a video, available here. 

The amicus brief submitted on behalf of the governor is available here. 

Wisconsin nonpartisan Legislative Fiscal Bureau (LFB) published an analysis of the approximately $2.2 billion Wisconsin is expected to receive from the from the Coronavirus Relief Fund created by the CARES Act. About $1.8 billion would go to the state government while the remaining funds would go to the City of Milwaukee, Milwaukee County and Dane County. The LFB has also provided Wisconsin-specific estimates for some of the programmatic increases provided by the stimulus package.  That report is available online (link).

The report includes a summary on all programs funded in the Act, including:

• Public Health Emergency Preparedness funding from CDC;
• Administration for Community Living
• Public Health and Social Services Emergency Fund
• Direct Payments to State and Local Governments
• Transportation, Housing and Unemployment Programs

Details on the full $2 trillion COVID-19 stimulus package are also available in the full bill available online (link).  The following is a summary of some of the healthcare related provisions in the bill.

Health and Long-term Care

Grants to Hospitals and Health Care Providers: Provides $100 billion to reimburse, through grants or other mechanisms, eligible health care providers for health care related expenses or lost revenues that are attributable to coronavirus. Medicaid and Medicare providers are included in the definition of health care provider. To apply, providers must submit an application to the Secretary of Health and Human Services that includes a statement justifying their need.

Delay of Disproportionate Share Hospital Reductions. Delays scheduled reductions in Medicaid disproportionate share hospital payments through November 30, 2020.

Increasing Provider Funding through Immediate Medicare Sequester Relief. Temporarily lifts the Medicare sequester from May 1 through December 31, 2020, boosting payments for hospital, physician, nursing home, home health, and other care by 2%. The Medicare sequester would be extended by one-year beyond current law to provide immediate relief without worsening Medicare’s long-term financial outlook.

Medicare Add-on for Inpatient Hospital COVID-19 Patients. Increases the payment that would otherwise be made to a hospital for treating a patient admitted with COVID-19 by 20%. It would build on the Centers for Disease Control and Prevention (CDC) decision to expedite use of a COVID-19 diagnosis to enable better surveillance as well as trigger appropriate payment for these complex patients. This add-on payment would be available through the duration of the COVID-19 emergency period.

Grants to the V.A.: Provides $14.4 billion to the Veteran’s Administration for medical services.

CDC: Provides $4.3 billion to the CDC. Of these funds, $1.5 billion is set aside for grants to states, territories and tribes to help carry out surveillance, epidemiology, laboratory capacity, infection control, mitigation, communications, and other preparedness and response activities.

Strategic National Stockpile: Provides $16 billion in funding for the Strategic National Stockpile to procure personal protective equipment, ventilators and other supplies.

Hospital Preparedness: Provides $250 million for grants to improve the capacity of healthcare facilities to respond to medical events.

Rural Health: Provides $180 million to expand services and capacity for rural hospitals, telehealth, poison control centers.

Health Savings Accounts for Telehealth Services. Allows a high-deductible health plan (HDHP) with a health savings account (HSA) to cover telehealth services prior to a patient reaching the deductible.

Providing Hospitals Medicare Advance Payments. Expands, for the duration of the COVID-19 emergency period, an existing Medicare accelerated payment program. Specifically, qualified facilities would be able to request up to a six month advanced lump sum or periodic payment. This advanced payment would be based on net reimbursement represented by unbilled discharges or unpaid bills. Most hospital types could elect to receive up to 100% of the prior period payments, with Critical Access Hospitals able to receive up to 125%. Finally, a qualifying hospital would not be required to start paying down the loan for four months, and would also have at least 12 months to complete repayment without a requirement to pay interest.

Extension of Physician Work Geographic Index Floor. Extends payments for the work component of physician fees in areas where labor cost is determined to be lower than the national average through December 1, 2020.

National Academies Report on America’s Medical Product Supply Chain Security: Requires the Department of Health and Human Services to enter into an agreement with the National Academies to examine and report on the security of the United States medical product supply chain. Part of the report requires the examination of the United States’ dependence on critical drugs and devices that are sourced or manufactured outside of the U.S.

Requiring the Strategic National Stockpile to Include Certain Supplies: Requires the strategic national stockpile to include personal protective equipment, ancillary medical supplies, and other applicable supplies required for the administration of drugs, vaccines and other biological products, medical devices, and diagnostic tests.

Preventing Medical Device Shortages: Requires manufacturers of medical devices that are critical during public health emergencies to notify the federal government of any discontinuance or interruption to manufacturing of the device that could disrupt the supply of the device in the U.S. The information will be used to compile a list of devices that are determined to be in short supply.

Rapid Coverage of Preventive Services and Vaccines for Coronavirus: Requires insurers to cover without cost-sharing any qualifying coronavirus preventive service. Qualifying preventive services include any evidence-based item, service, or immunization that is intended to prevent or mitigate coronavirus disease.

Increased Funding for Health Centers: Provides $1.3 billion in additional funding to community health centers in fiscal year 2020.

Telehealth Network and Resource Center Grants: Provides $29 million per year through 2025 and reauthorizes Health Resources and Services Administration (HRSA) grant programs that promote the use of telehealth technologies for health care delivery, education, and health information services.

Rural health care services outreach, rural health network development, and small health care provider quality improvement grant programs. Provides $79.5 million per year through 2025 and reauthorizes HRSA grant programs to strengthen rural community health by focusing on quality improvement, increasing health care access, coordination of care, and integration of services.

Limitation on liability for volunteer health care professionals during COVID-19 emergency response. Makes clear that doctors who provide volunteer medical services during the public health emergency related to COVID-19 have liability protections. In order to have the liability protections provided by the bill, a volunteer provider must be acting within the scope of their license, registration or certification as defined by the state.

Health Care Workforce

Reauthorization of health professions workforce programs.

Provides $51.4 million per year between 2021 and 2025 for scholarships to health care students. The funding is given to eligible entities, which includes schools of medicine, nursing, dentistry, optometry, public health, etc.

Provides $48.9 million per year for the primary care training and enhancement program. Adds language prioritizing grant awards to programs that train physicians in rural areas.

Provides $41.2 million for eligible entities to establish health care workforce educational programs.

Provides $1.1 million per year for a loan repayment program for medical, dental and nursing students who agree to serve as faculty following graduation.

Provides $15 million per year to provide educational assistance to individuals from disadvantaged backgrounds to pursue health care education.

Extension of Demonstration Projects to Address Health Professions Workforce Needs: Extends the Health Professions Opportunity Grants (HPOG) program through November 30, 2020 at current funding levels. This program provides funding to help low-income individuals obtain education and training in high-demand, well-paid, health care jobs.

Education and training relating to geriatrics. Provides $40.7 million per year and reauthorizes and updates Title VII of the Public Health Service Act (PHSA), which pertains to programs to support clinician training and faculty development, including the training of practitioners in family medicine, general internal medicine, geriatrics, pediatrics, and other medical specialties. It emphasizes integration of geriatric care into existing service delivery locations and care across settings, including home- and community-based services. The Secretary may provide  awardees with additional support for activities in areas of demonstrated need, which may include education and training for home health workers, family caregivers, and direct care workers on care for older adults. Eligible entities could receive awards of at least $75,000.

Economic Relief

Recovery Rebates for Americans: Provides a one-time payment of $1,200 to individuals with incomes below $75,000 or a one-time payment of  $2,400 for joint filers with incomes below $150,000. Payments are increased by $500 per child. The bill requires the one-time payments to be made as soon as possible.

Relief Payments to States, Tribal Governments and Local Units of Government: Provides $150 billion in direct payments to states, tribal governments and local units of government with. To qualify, local governments must have populations of more than 500,000 people. Payments are required to be used to cover expenditures related to COVID-19 that occur between March 1, 2020 and December 30, 2020. Expenditures must not have been accounted for in the state or local government’s most recent budget. The bill requires the Treasury Secretary  to make these payments within 30 days of enactment.

Loans for Small Businesses, Non-profits, Contractors and Self-Employed Individuals. Allows nonprofits and other businesses with less than 500 employees to get loans from the Small Business Administration if they were adversely impacted by COVID-19. Loans can be used to cover payroll costs, health care benefits, mortgage or rent payments, utilities or interest on debt. Borrowers will be eligible for loan forgiveness if they maintain employees and their salaries. The eligibility period runs from February 15, 2020 to June 30, 2020. Maximum loan amounts will be determined using the organization's average monthly payroll amounts over a one year period. The bill appropriates $349 billion for this loan program.

Employee retention credit for employers subject to closure due to COVID-19. Provides a refundable payroll tax credit for 50% of wages paid by employers to employees during the COVID-19 crisis. The credit is available to employers whose (1) operations were fully or partially suspended, due to a COVID-19-related shutdown order, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year.

Small Business Administration Disaster Loans: Provides $562 million to the Disaster Loan Program.

Broadband and Telehealth

Rural Utilities Service--Distance Learning, Telemedicine and Broadband Program: Provides $25 million for telemedicine and distance learning services in rural areas.

Reconnect Pilot: Provides $100 million for grants for the costs of construction, improvement, or acquisition of facilities and equipment needed to provide broadband service in eligible rural areas.

Federal Communications Commission Telehealth: Provides $200 million to the FCC to respond to COVID-19. This includes supporting health care providers by providing telecommunications services, information services, and devices necessary to enable the provision of telehealth services.

Higher Education and Student Loans

Temporary Relief for Federal Student Loan Borrowers: Requires the Secretary to defer student loan payments, principal, and interest for 6 months, through September 30, 2020, without penalty to the borrower for all federally owned loans.

Adjustments of Subsidized Loan Limits. For students who dropped out of school as a result of COVID -19 excludes the term from counting toward lifetime subsidized loan eligibility.

Exclusion from Federal Pell Grant Duration Limit. For students who dropped out of school as a result of COVID -19 excludes the term from counting toward lifetime Pell eligibility.

Institutional Refund and Federal Student Loan Flexibility. For students who dropped out of school as a result of COVID -19, the student is not required to return Pell grants or federal student loans to the Secretary. Waives the requirement that institutions calculate the amount of grant or loan assistance that the institution must return to the Secretary in the case of students who dropped out of school as a result of COVID-19

Exclusion for certain employer payments of student loans: Allows employers to provide a student loan repayment benefit to employees on a tax-free basis. Under the provision, an employer may contribute up to $5,250 annually toward an employee’s student loans, and such payment would be excluded from the employee’s income. The $5,250 cap applies to both the new student loan repayment benefit as well as other educational assistance (e.g., tuition, fees, books) provided by the employer under current law. The provision applies to any student loan payments made by an employer on behalf of an employee after date of enactment and before January 1, 2021.