Wisconsin Legislature: 2003-05-21 Senate Journal

Relating to: the agricultural producer security program, granting rule-making authority, and making an appropriation.

By Senators Brown, Schultz, Lassa and Roessler; cosponsored by Representatives Ott, Gronemus, Gunderson, Pettis, Loeffelholz, Musser, Freese, Townsend and Petrowski.

To committee on Agriculture, Financial Institutions and Insurance.

Senate Bill 174

Relating to: claiming the technology zone tax credit.

By Senators Harsdorf, Lassa, Jauch, Zien, Schultz, Kanavas, Stepp, Wirch and Roessler; cosponsored by Representatives Suder, Nass, Vruwink, Hahn, Pettis, Albers, Friske, Seratti, Towns, McCormick, Hines, Jensen, Ainsworth, Townsend, Krawczyk and Petrowski.

To committee on Economic Development, Job Creation and Housing.

Senate Bill 175

Relating to: requiring instruction in public schools on the history of organized labor in America and the collective bargaining process.

By Senators Hansen, Decker, Chvala, Robson and Plale; cosponsored by Representatives Zepnick, J. Lehman, Kreuser, Richards, Vruwink, Morris, Balow, Sinicki, Black, Pocan, Berceau and Steinbrink.

To committee on Education, Ethics and Elections.

Senate Bill 176

Relating to: authorizing municipal insurance mutuals to provide property insurance.

By Senators Schultz, S. Fitzgerald, Cowles and Roessler; cosponsored by Representatives Ladwig, Gard, Albers, Ainsworth, Ott, Gronemus, Krawczyk, Taylor, Turner, Hines and Huber.

To committee on Agriculture, Financial Institutions and Insurance.

__________________

petitions and communications

State of Wisconsin

Office of the Governor

May 19, 2003

To the Honorable, the Senate:

The following bill(s), originating in the Senate, have been approved, signed and deposited in the office of the Secretary of State:

Sincerely,

Jim Doyle

Governor

S187 State of Wisconsin
Office of the Secretary of State

To the Honorable, the Senate:

Sincerely,
Douglas La follette
Secretary of State

State of Wisconsin

Commissioner of Insurance

May 12, 2003

The Honorable, The Legislature:

In accordance with s. 601.427(9), Wis. Stat., I am pleased to submit this report to the Wisconsin Legislature. This report is to evaluate the impact that 1995 Wisconsin Act 10 has had on the following:

(a) The number of health care providers practicing in Wisconsin.

(b) The fees that health care providers pay under s. 655.27(3), Wis. Stats.

The evaluation performed included the collection and analysis of statistics regarding the number of health care providers and premiums charged for health care liability insurance. Analysis of these statistics determined the only discernable effect on these areas has been an estimated $88 million dollars reduction in the actuarially determined assessment levels under s, 655.27 (3), Wis. Stats., over the last seven years.

The attached report provides information regarding the background of Act 10, the statistics collected and the analysis performed.

Sincerely,

Jorge Gomez

Commissioner

State of Wisconsin

Claims Board

May 19, 2003

The Honorable, The Senate:

Enclosed is the report of the State Claims Board covering the claims heard on April 25, 2003.

The amounts recommended for payment under $5,000 on claims included in this report have, under the provisions of s. 16.007, Stats., been paid directly by the Board.

The Board is preparing the bill(s) on the recommended award(s) over $5,000, if any, and will submit such to the Joint Finance Committee for legislative introduction.

This report is for the information of the Legislature. The Board would appreciate your acceptance and spreading of it upon the Journal to inform the members of the Legislature.

Sincerely,

John E. Rothschild

Secretary

STATE OF WISCONSIN CLAIMS BOARD

The State Claims Board conducted hearings at the Department of Administration Building, St. Croix Room, Madison, Wisconsin, on April 25, 2003, upon the following claims:

Claimant Agency Amount

1. Julie & Mike Health and $5,000.00

Savidusky Family Services

2. University Avenue Wisconsin State $350.00

Stamps Fair Park

3. Mullins Cheese, Inc. Agriculture, Trade $17,568.12

& Consumer Protection

4. Colleen Eidt Revenue $3,540.94

5. George T. Harrell Revenue $5,980.39

6. Jeffrey LaBudda Employee Trust Funds $1,016.14

In addition, the following claims were considered and decided without hearings:

Claimant Agency Amount

7. Frank T. Teumer Natural Resources $1,529.75

8. Martha Gesch Revenue $21,000.00

9. Kimberly M. Aldridge Health and Family $3,191.76

Services

10. Chris Hendrickson Health and Family $1,142.15

Services/Administration

11. Millers Classified Administration $1,563.17

Insurance

12. Thomas M. Barcz Administration $941.05

13. Robert L. Collins-Bey Corrections $2,221.25

14. Berrell Freeman Corrections $800.00

15. David K. Dellis Corrections $82.25

The Board Finds:

S188 1. Mike and Julie Savidusky of Madison, Wisconsin claim $5,000.00 for medical expenses not covered by the BadgerCare program. In 2001, the claimants were invited on a wedding related three-day cruise to the Bahamas, with all expenses paid by their hosts. The claimants were participants in the BadgerCare program. Before leaving on the trip, Mr. Savidusky consulted their Dean Health Plan Medicaid/BadgerCare Handbook to determine if they needed to purchase the health insurance offered by the cruise line. Nothing in the handbook indicated that BadgerCare had any geographic restrictions on coverage, it simply stated, "For severe emergencies, go to the nearest hospital, clinic or doctor." Based on this information, they believed they would be covered during the trip and therefore did not purchase the additional insurance. During the trip, while walking on the beach in Nassau, Ms. Savidusky suffered a grand mal seizure, during which she stopped breathing and had no pulse. Her husband administered CPR and Ms. Savidusky was hospitalized for six days. The hospital required payment up front and a family friend loaned money to the claimants to cover the bill. Mr.Savidusky made several calls to Dean Health while in the Bahamas and after they returned home and was assured each time that the costs would be covered by BadgerCare. Two months later BadgerCare informed the claimants that their medical expenses would not be covered because treatment occurred outside the territory of the US, Mexico and/or Canada – a restriction allegedly set forth in a document titled Eligibility and Benefits Handbook. The claimants state that they have never received any handbook by this name. The claimants filed a grievance with Dean Health, which was denied based on the geographic restriction. Dean Health alleged that it was the State's responsibility to provide the claimants with the Eligibility and Benefits Handbook. The claimants filed an appeal with the State's Division of Hearing and Appeals. Administrative Law Judge, Kenneth Adler, ruled that coverage could not be granted because of the geographic restrictions set forth in the BadgerCare rules, but also stated that the claimants might have a case in equity. Judge Adler noted that although DHFS claimed that the claimants "should" have received a copy of the Eligibility and Benefits Handbook, they could not verify that the claimants' caseworker had ever provided it to them and, in fact, no one from DHFS was even able to produce a copy of this handbook. The claimants state that they relied on the only rules that they were given, which made no mention of geographic restrictions. The medical expenses they incurred totaled $7,070.75. Based on their legal research, the claimants do not believe that they have a legal claim against Dean Care. The claimants are aware of the Board's $5,000.00 limit and, rather than dealing with additional delays that would be caused by legislation required for the full amount, they request payment of $5,000 to cover the majority of their expenses.

DHFS does not contest payment of this claim. Although the medical services provided to the claimants in the Bahamas are not covered under the laws governing the BadgerCare program, DHFS admits that this lack of coverage may not have been made clear to the claimants prior to their trip. DHFS has no objection to approval of this claim by the Claims Board but points to the fact that there is no DHFS appropriation to recommend as a payment source. Section HFS 104.01(11) prohibits direct recipient reimbursement with program funds and it appears that the provider has already been paid.

The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.

2. University Avenue Stamps of Madison, Wisconsin claims $350.00 for damage to stamps incurred at the MILCOPEX 2002 Stamp Show, which took place at Wisconsin State Fair Park in September 2002. The claimant was an exhibitor at the show. The claimant set up his display using the tables that were provided by SFP for the event. The claimant states that the table he used did not appear to be wet and that the surface was dry to the touch. The claimant placed a cloth on the table, arranged his stamps, which were displayed in packages that had paper backings, and then placed a sheet of Plexiglas over the top of the table to protect the stamps. The claimant later discovered that some of his stamps had water damage and that the table was wet to the touch. The claimant believes there was moisture inside the table surface, which his tablecloth absorbed and which then became trapped under the Plexiglas. In response to SFP's assertion that he should have dried off the table before using it, the claimant states that there was no moisture evident on the table when he set up his display and that he never would have placed his stamps on the table if he had known it was damp. The claimant believes that, although the top of the table had dried out, there was apparently still moisture trapped inside the table surface. The claimant believes that SFP stored the tables improperly by letting them get wet and then not allowing them to dry completely before using them again. The stamps for which the claimant is requesting reimbursement were in mint condition and had never been used. The moisture from the table caused the stamps to adhere to the paper backing and they therefore are no longer considered unused because the gum on the back of the stamp has been disturbed. Stamps with disturbed gum are no longer considered unused and their value is decreased to that of a used stamp. Finally, the claimant points to the fact that the host of the event, the Milwaukee Philatelic Society, fully supports his claim as shown in their statement submited with his claim documents. In support of the claimant, MPS states that they believe that SFP is responsible for providing facilities and equipment that are ready for use and that do not cause their show any loss or damage.

SFP recommends that this claim not be paid. SFP believes that if moisture was the cause of the damage to the claimant's stamps, the primary responsibility rests with the claimant to dry the table before using it. SFP believes that it is the claimant's responsibility to protect the quality of his stamps. SFP states that the event at which the claimant exhibited his stamps was conducted by the Milwaukee Philatelic Society. While SFP provides the tables for the event, they are actually set up by MPS and therefore any secondary responsibility for drying the tables would rest with MPS. SFP also points to the fact that MPS' contract with the state has a hold harmless agreement, releasing the state from liability. MPS also has a contract with each exhibitor, which includes a hold harmless agreement for both MPS and SFP.

3. Mullins Cheese, Inc., of Mosinee, Wisconsin claims $17,568.12 for damages allegedly caused by milk testing conducted by DATCP. The claimant alleges that its own test, the test performed by DATCP and tests conducted by a third-party laboratory all were negative for antibiotics in excess of established limits. The claimant states that DATCP refused to accept their test results and ordered them to hold all cheese and whey protein concentrate but requested that they destroy their whey cream. The claimant alleges that DATCP eventually agreed to allow samples to be sent to a FDA lab in Colorado and that this lab's test also came back negative. The claimant's whey cream had been delivered to Grassland Dairy and had been mixed into an even larger amount of whey cream from other sources. The claimant states that it continued processing the tested milk because it had no reason to believe that the tests would be positive, based on its own negative test results. Grassland voluntarily destroyed the 42,132 pounds of whey cream that had been mixed with the claimant's whey cream. Grassland Dairy's insurance carrier denied their claim for the dumped cream and the claimant reimbursed them for their damages. The claimant believes that DATCP's actions were inappropriate and that state personnel were uncooperative. He requests reimbursement for the amount he had to pay Grassland Dairy for the dumped whey cream.

S189 DATCP recommends denial of this claim. DATCP conducted a regularly scheduled, unannounced inspection of Mullins Cheese. Pursuant to state and federal rules, this inspection included testing milk for antibiotics beyond the legal limits. DATCP states that on a number of previous occasions it has explained its FDA-approved test procedure, which is different from and more sensitive than the claimant's. DATCP also states that it has previously encouraged Mullins not to mingle loads of milk that has been sampled until it receives the tests results from DATCP. DATCP alleges that it is standard industry practice to hold tested milk until the results are received from DATCP. Ignoring DATCP's advice, the claimant chose to mix the tested milk into other loads, process it into cheese and other products, and ship these products to other dairies before receiving the test results. The day after the testing, DATCP notified the claimant that the milk contained unacceptably high levels of antibiotics. Two days later, DATCP requested that the claimant dispose of adulterated products. The claimant requested that the samples be sent to a FDA lab and DATCP voluntarily agreed to do so at no cost to the claimant. This testing was expected to take 2 weeks to complete and all finished products from the original milk load were put on hold. Because of its short shelf life, the claimant and one of its customers voluntarily destroyed loads of permeate made from the original milk load and Grassland Dairy voluntarily destroyed 42,132 pounds of adulterated whey cream. DATCP states that, contrary to the claimant's assertion, the FDA lab confirmed DATCP's findings concerning the level of drug residue in the milk. The FDA's test is more sensitive than the tests done by either DATCP or the claimant and allowed the FDA lab to specifically identify the antibiotic. Once the drug was identified, DATCP did determine that the residue was within acceptable limits for that particular drug and released the claimant's cheese inventory. DATCP denies ever ordering the claimant or any of its customers to destroy product. DATCP points to the fact that it was not required to send the samples to the FDA lab but did so solely in order to assist the claimant in hopes of saving some of his product. DATCP states that the claimant chose to disregard DATCP advice when it continued to process tested milk before knowing the test results. DATCP does not believe the state should reward the claimant by paying for damages caused by his own poor judgement and risky behavior.

The board recommends that the claim be paid in the amount of $17,568.12 based on equitable principles.

4. Colleen Eidt of Brookfield, Wisconsin claims $3,540.94 for overpayment of taxes related to adjustments made by DOR to her 1993-1997 taxes. The Internal Revenue Service made adjustments to the claimant's 1994 income taxes. DOR was notified by the IRS, made the same 1994 adjustments and also made adjustments to her rental income calculations for 1993-1997. DOR issued assessments for amounts allegedly due by the claimant after these adjustments were made. The claimant paid the assessments through a combination of direct payments and intercepted tax refunds. The claimant admits that there were errors made in the rental income but believes that the errors result in relatively small adjustments ($200 to $400) not the $3,540.94 collected by DOR. The claimant apologizes for not sending information requested by DOR earlier in order to clear up ownership of the property in question. The claimant admits that she made some errors on her taxes but believes that DOR collected money far in excess of what she actually owed and requests that she be reimbursed her overpayment.