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WALHDAB Legislative News - May 2020

Friday, May 29, 2020  
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Governor Evers Announces Over $1 Billion in Grants for COVID-19 Response

On Tuesday, May 19, Governor Tony Evers announced $1.17 billion in grants to combat COVID-19.  The funds are made available from federal dollars allocated by the CARES Act.

According to the press release, $260 million will be utilized to expand testing and $75 million will be used for contact tracing.

“As I’ve said before, regardless of the political overtones of the past week, we still know what we need to do to box in this virus and help keep people safe,” Gov. Evers said. “Our statewide approach to containing the spread of COVID-19 will continue with robust testing and contact tracing efforts in all corners of Wisconsin, resources that ensure our critical workers have the equipment they need to do their jobs safely, and direct investments in local communities and health providers.”

The announcement also includes $40 million to procure ventilators, $150 million for PPE, $445 million to “ensure Wisconsin hospital systems and communities are prepared to handle a surge of COVID19 patients over the summer and fall,” and $200 million for state emergency response.

WALHDAB and WPHA staff and lobbyists have contacted the Governor’s office and Secretary’s office at the Department of Health Services for more information on how funds can be accessed and applied for. Updates will be made when more information is available.

State Supreme Court Strikes Down Safer at Home Extension

Ongoing COVID-19 Strategy Left to Local Public Health Departments

On May 13, the Wisconsin State Supreme Court struck down the Safer at Home extension ordered by Department of Health Services Secretary-designee Andrea Palm. While the Court did not rule on the legality of the Safer at Home policy, it did rule the process by which the policy was implemented was illegal.

The Court ruled that Secretary-designee Palm did not have the singular authority to extend the Safer at Home order to May 26 and stipulated the action required emergency rulemaking procedure, which was not executed by the Department.

At the heart of the issue was whether or not DHS can extend the Safer at Home order beyond May 11. Governor Tony Evers declared a public health emergency in March. By law, such declarations expire after 60 days. In this specific instance, the expiration date was May 11. 

Emergency Order #28, issued by Palm, extended the Safer at Home order two weeks beyond the expiration date. Palm and DHS cited statute 252.02 as providing the department the authority to take actions to combat outbreaks of communicable disease outside the confines of a 60 day public health emergency declaration. Republican legislative leaders disagreed with the interpretation of that statute and filed the challenge in the State Supreme Court.

Prior to oral arguments in the case both WALHDAB and WPHA filed amicus briefs in support of Palm’s order.

“If Emergency Order #28 is ended or modified or subjected to additional rulemaking procedures through this action, the Court will erode the sacrifices all Wisconsinites have made since Safer at Home began and severely hamper DHS’ ability to act quickly as this pandemic unfolds. The Court should stand on the side of public health,” WALHDAB’s amicus brief argued.

The ruling was decided on a 4 to 3 vote. One conservative member, Justice Brian Hagedorn, disagreed with his conservative colleagues, stating in his dissent, “The legislature may have buyer's remorse for the breadth of discretion it gave to DHS in Wis. Stat. § 252.02. But those are the laws it drafted; we must read them faithfully whether we like them or not.”

In the wake of the ruling, Wisconsin is without a statewide strategy to combat COVID-19. WALHDAB and WPHA quickly issued a statement publicly calling for a statewide, bipartisan policy. 

“While municipalities and counties are implementing policies to address the disease within their individual communities, this patchwork of policies will not be the most effective for protecting the health and safety of all Wisconsinites,” the statement read in part.

The Department of Health Services took direction from the ruling and submitted proposed emergency rules to the legislature for approval, but it rescinded that proposal on May 18 after comments from Republican legislative leaders who want to leave ongoing strategies to local public health departments.

After mixed messages from various attorney and legal experts on the totality of local authority, Attorney General Josh Kaul issued an opinion that nothing in the Supreme Court’s ruling affects the authority of local public health officials to issue Safer at Home orders for their jurisdictions.

There is, however, some public opposition to local orders. On Wednesday, May 20, a group of Wisconsin citizens filed a challenge against local orders on Constitutional grounds in federal court in Milwaukee. The challenge states that local stay at home orders infringe upon rights to freely assembly and freely practice religion.

On May 22, WALHDAB and WPHA issued a statement publicly denouncing the lawsuit.

“WALHDAB and WPHA oppose this attempt to overturn 133 years of legal precedent and 38 years of statutory authority. The legal authority our members have to implement strategies to combat COVID- 19 is clear. Local health officials are using the tools at their legal disposal to address the COVID-19 pandemic at the local level,” the statement concludes.

As of this writing, there have been no major developments in the case. Governor Evers’ legal counsel, Ryan Nilsestuen, told the media he is “optimistic that this lawsuit will go nowhere.” WALHDAB’s and WPHA’s staff and lobbying team are closely monitoring the situation and will provide updates.

Legislature Objects to Student Immunization Program Updates

On May 5, the legislature's Joint Committee on Review of Administrative Rules (JCRAR) met to take action on CR19-079, which is the rulemaking proposal from Department of Health Services to update that state’s student immunization program. The committee met to review the objection made by the Assembly Committee on Constitution and Ethics earlier this year. In advance of the committee's meeting, WALHDAB and WPHA a memo with the committee in support of DHS’ rule proposal.

JCRAR's action largely echoed the Assembly Committee on Constitution and Ethics. On a partisan line vote, the Republican-majority JCRAR voted to do the following:

1. Object to the inclusion of varicella and meningococcal disease to the list diseases which fall within the rule's definition of "substantial outbreak"

2. Object to the inclusion of "1 Mening" and "2 Mening" as required immunizations, and therefore object to requiring a second dose of mening as proposed in the rule draft. 

3. Object to repealing the sentence “A parent of a minor student or an adult student may indicate a reliable history of varicella by signing a statement that the student has had varicella disease" from current DHS 144 language.

4. Object to the creation of the following proposed new language to DHS 144: “A physician, physician assistant, or an advanced practice nurse prescriber, must document a reliable history of varicella disease by indicating on the department’s student immunization record form that the student has had varicella disease.”

Furthermore, the committee requested DHS to consider modifications to the proposed rule that mirror the objections. 

Finally, the committee voted to introduce legislation to prevent promulgation of the rule. This is required under the rulemaking process set out in statute 227.19 (5) (e) when JCRAR objects to all or part of a proposed rule. Also in accordance with statutory requirements for the rulemaking process laid out in 227.19 (5) (g), JCRAR must reintroduce legislation blocking promulgation on the first day of the 2021-22 legislative session because today is after February 1 in an even-numbered year. 

Essentially, this means DHS will not be able to promulgate the rule this year. The legislature will likely look to pass the required bill next session that bars DHS from promulgating the rule without adhering to the committee's objections. WALHDAB and WPHA lobbyists expect the Governor to veto that bill, which would leave the rule proposal in committee until some sort of agreement allows the rule to move forward.

WALHDAB and WPHA will work with coalition partners to re-strategize support for the rule with the goal of updating DHS rules next year.

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