On April 15, 2020, Wisconsin Governor Tony Evers signed a robust COVID-19 bill into law, just hours after it passed in a remote state Senate. The Wisconsin State Assembly Bill 1038, amongst its many measures to address the impacts of coronavirus, grants immunity to health care providers from civil liabilities for COVID-19 care-related death or injuries. Wisconsin is the latest in a series of states to pass a similar measure limiting the legal liabilities for frontline medical personnel arising from the COVID-19 pandemic. It’s been lauded as a bipartisan win but Governor Evers noted the new law is, “a step in the right direction, but there is much more work to be done.”
Protections for Health Care Providers
For the legal community, the most pertinent piece of legislation out of Wisconsin is the immunity from civil liabilities for medical professionals. The bill defines these professionals as, “health care professionals and providers and employees, agents, or contractors of those professionals or providers.” The liability protection extends over “death, injury, or damages caused by actions or omissions taken in providing services or in response to a 2019 novel coronavirus outbreak.” It’s a sweeping defense for health care professionals, given their course of action did, “not involve reckless or wanton conduct or intentional misconduct,” and was in direct response to the health crisis under official medical authority.
Liability Protection for Manufacturers
The bill extends civil liability exemption to individuals who, “manufacture, distribute, or sell emergency medical supplies to respond to the public health emergency,” for any associated death or injury. It explains the term, “emergency medical supplies” refers to, “any medical equipment or supplies necessary to limit the spread of, or provide treatment for…related to the COVID-19 pandemic, including ”including life support devices, personal protective equipment, cleaning supplies, and any other items determined to be necessary by the secretary of health services.” The bill also stipulates that this applies only to manufacturers who have sold medical supplies “at a price not to exceed the cost of production,” which excludes merchants attempting to price gauge their products. Additionally, the bill covers those manufacturers who have donated products and charitable organizations that have distributed free medical supplies.
With unemployment rates reaching a record high in Wisconsin, the bill eliminates a one week waiting period to file for unemployment benefits upon becoming eligible. This covers eligibility beginning March 12, 2020 through February 7, 2020. The bill further requires the Wisconsin Department of Workforce Development (DWD) to “seek the maximum amount of federal reimbursement for benefits” payable within the first week of eligibility given the new suspension of the one week delay. Effectively, Wisconsin is seeking to capture all federal funds possibly owed to its citizens. Additionally, should the DWD determine an unemployment claim is directly related to the COVID-19 pandemic, the bill eliminates benefit charging these claims within the March 12 through December 31, 2020 window. These benefit charges will instead be routed to the unemployment reserve fund.
Worker’s Compensation for First Responders
For the purposes of claiming worker’s compensation, the bill grants rebuttable presumption that injuries sustained by a first responder are caused by their employment. This measure will stay in effect from March 12, 2020’s executive order 72 declaring the health emergency through 30 days past the end of the emergency order. The rebuttable presumption must be supported by a diagnosis or conclusive COVID-19 test.
Medical Credential Renewals
Health care providers due to renew their medical credentials during the emergency period outlined by executive order 72 are exempt from those deadlines. This exemption extends to 60 days past the official end of the emergency period. Following this window, health care providers are not subject to any late renewal fees.
Credential renewals for emergency medical services (EMS) providers have also been suspended for the duration of the public health emergency. Upon the next available renewal date following the emergency period, the Wisconsin Department of Health may offer exemption or reduction to EMS personnel for continuing education and exams requirements for renewal.
Credentials for Former Providers
The bill authorizes the Wisconsin Department of Safety and Professional Services to issue temporary credentials to former health care providers who have been previously licensed and officially certified. This order applies to any health care provider who has been licensed in the past five years and whose license was not at any time revoked or suspended. The bill outlines applicable health care providers as physicians, physician assistants, registered nurses, nurse-midwives, licensed practical nurses, dentists, pharmacists, psychologists, social workers, marriage or family therapists, professional counselors, and clinical substance abuse counselors. This order extends to health care providers previously licensed in other states. These temporary credentials expire 90 days after the public health emergency period.
Correctional System Fatalities
The bill suspends the full autopsy requirement for inmates who die while in legal custody. This applies to deceased inmates who were diagnosed with COVID-19. Medical examiners and coroners are authorized to instead perform a “limited examination” for the duration of the public health emergency period.
Prohibiting Insurance Discrimination
The bill prohibits insurance companies from altering eligibility, renewal, or contract terms based on an individual’s COVID-19 diagnosis. Insurers also may not refuse a grace period for a premium payment that would otherwise be granted. This measure is designed to eliminate future discrimination from insurance providers on the basis of a coronavirus diagnosis.
The bill further requires every health insurance provider to provide coverage for COVID-19 testing without any additional coinsurance or copayments prior to March 13, 2021.
Looking forward, Governor Evers made it abundantly clear this is not relief for Wisconsinites in its entirety. “This bill does not provide hazard pay or workers compensation for all frontline and critical workers like first responders, childcare providers, and healthcare workers who are risking their lives going to work every day,” he said, “This bill lacks meaningful support for small businesses and farmers who are struggling to make ends meet.” Additional emergency legislation tackling COVID-19 relief for the state is likely forthcoming.