AB850: Bill Text Engrossed

2001 - 2002 LEGISLATURE

Engrossed 2001 Assembly BILL 850

March 8, 2002 - Printed by direction of Senate Chief Clerk.

AB850-engrossed,1,11 An Act to renumber 95.22 and 252.06 (4); to renumber and amend 21.80 (1) (a); to amend 20.465 (3) (e), 21.80 (title), 21.80 (3) (a) 4., 21.80 (3) (c) 1., 21.80 (3) (c) 2., 21.80 (3) (c) 3., 21.80 (3) (f) 1., 166.03 (1) (b) 1., 252.02 (title), 252.05 (1) and 252.06 (1); and to create 20.285 (1) (fg), 20.435 (1) (e), 21.80 (1) (a) 2., 36.25 (11) (em), 50.36 (3d), 95.22 (2), 157.055, 166.02 (1p), 166.02 (1r), 166.02 (1t), 166.02 (7), 166.02 (8), 166.03 (1) (b) 8., 166.03 (2) (a) 6., 250.01 (6g), 250.01 (6r), 250.03 (3), 250.03 (3) (b), 250.042, 251.05 (3) (e), 252.02 (7), 252.041, 252.06 (4) (b), 252.06 (10) (c), 440.142 and 979.012 of the statutes; relating to: authorizing a declaration of and actions under a state of emergency related to public health, requiring the exercise of rule-making authority, making appropriations, and providing a penalty.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 2001 Assembly Bill 850 consists of the bill, as passed by the assembly on March 7, 2002, as affected by the following Assembly Amendments adopted in the assembly on March 7, 2002: Assembly Amendments 1 (as affected by chief clerk's correction), 3, and 6.

Content of Engrossed 2001 Assembly Bill 850

Under current law, the governor may proclaim a state of emergency for any portion of the state or the whole state if the governor determines that an emergency resulting from enemy action or a natural or man-made disaster exists. The state of emergency may not exceed 60 days for an emergency resulting from enemy action or 30 days from disasters, unless extended by a joint resolution of the legislature. The department of military affairs, through the division of emergency government, is the lead state agency to respond to the emergency. This bill allows the governor to proclaim a state of emergency related to public health and designate the department of health and family services (DHFS) as the lead state agency if the governor determines that a public health emergency exists. Under the bill, the governor may suspend an administrative rule during a state of emergency related to public health if strict compliance with the rule would hinder a response to the emergency and increase the health threat to the population. The bill defines a public health emergency as the occurrence or threat of a health condition that is caused by bioterrorism or a novel or previously controlled biological agent and that poses a high probability of a large number of deaths or serious injury and a high probability of widespread exposure to a biological, chemical, or radiological agent that creates a significant risk of harm to a large number of people.

Current law relating to the duties of funeral directors prohibits a public officer, an employee or officer of a public institution, or a physician from sending the corpse of a person to a funeral director without having first made inquiry as to the desires of the next of kin or others who may be chargeable with the funeral expenses. No person who is not licensed as a funeral director by the funeral directors examining board may engage in the business of a funeral director. Further, no person may cremate a corpse without first obtaining a cremation permit from the appropriate county coroner or medical examiner. If a corpse is the subject of a coroner's or medical examiner's investigation concerning cause of death, no person may embalm or conduct an autopsy on the corpse without authorization from the appropriate coroner or medical examiner.

Under current law, DHFS must carry out a statewide immunization program to eliminate mumps, measles, German measles, diphtheria, whooping cough, poliomyelitis, and other diseases that DHFS specifies by rule and to protect against tetanus. Any registered nurse, licensed practical nurse, nurse midwife, physician, physician assistant, respirator care practitioner, physician therapist, podiatrist, dietitian, athletic trainer, or occupational therapist who knows or has reason to know that a person treated or visited by him or her has a communicable disease or, having a communicable disease, has died, must report the appearance of the disease or the death to the local health officer; the local health officer must report, or require the person reporting, to report to DHFS. DHFS has broad authority to implement emergency measures necessary to control communicable diseases, that are diseases specified by DHFS by rule. DHFS or local health officers of local health departments may require isolation of a patient, quarantine of contacts, disinfection, or modified forms of these procedures. If a local health officer has a reasonable belief in the existence of a communicable disease or receives a diagnostic report of a physician or notification or a confirming report from a parent or caretaker, the local health officer must immediately quarantine, isolate, and impose restrictions on persons or take other communicable disease control measures. If DHFS or a local health officer determines it necessary for a particular communicable disease, no persons except the local health officer, his or her representative, the attending physicians and nurses, members of the clergy, members of a patient's immediate family, and other persons with a special permit from the local health officer may be in direct contact with the patient.

This bill requires DHFS to act as the public health authority during the period of a state of emergency related to public health, if the governor declares the state of emergency and designates the department as the lead state agency. During the state of emergency, the secretary of health and family services may designate a local health department as an agent of DHFS and confer upon the local health department, acting under that agency, the powers and duties of the public health authority. Under the bill, as the public health authority, DHFS must inform state residents when a state of emergency related to public health has been declared or is terminated, how to protect themselves, and what actions the public health authority is taking to control a public health emergency. This information must be provided by all available and reasonable means calculated to inform the general public. DHFS also must consult with local health departments and individual health care providers.

The bill creates a sum sufficient appropriation of general purpose revenues from which DHFS may purchase, store, or distribute antitoxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents or medical supplies that DHFS determines are advisable to control a public health emergency and may reimburse a local health department for reasonable and necessary expenses in acting as DHFS' agent. DHFS also may order any individual to receive a vaccination unless the vaccination is reasonably likely to lead to serious harm to the individual or unless the individual, for reasons of religion or conscience, refuses. DHFS also may isolate or quarantine any individual who is unable or unwilling for reasons of health, religion, or conscience to receive the vaccination. Further, the bill creates provisions relating to visitation during isolation or quarantine under a state of emergency related to public health to establish a penalty for any person, other than a person authorized by the public health authority or agent of the public health authority, who enters an isolation or quarantine premises. In addition, a person, whether authorized or not, who enters an isolation or quarantine premises may be subject to quarantine or isolation. Under a state of emergency related to public health, the expense of providing a reasonable means of communication for a person quarantined outside his or her home must be paid from the DHFS sum sufficient appropriation or, if DHFS is not designated as the lead state agency, from the sum sufficient general purpose revenues appropriation of the department of military affairs. All health care providers who know or have reason to know that a person treated, visited, or otherwise provided service by them has a communicable disease, or, having a communicable disease, has died, must report the communicable disease or death to the local health officer.

The bill also permits a public health authority, during a period of a state of emergency relating to public health, to do all of the following:

1. Issue and enforce orders that are reasonable and necessary to provide for the safe disposal of human remains, including by embalming, burial, cremation, interment, disinterment, transportation, and other disposal.

2. Take possession and control of any human remains.

3. Order the disposal, through burial or cremation, of any human remains of an individual who has died of a communicable disease, within 24 hours after the individual's death.

4. If reasonable and necessary for emergency response, require a funeral establishment, as a condition of its permit, to accept human remains or provide the use of its business to the public health authority for the period of the state of emergency. Reasonable and necessary expenses of the funeral establishment in complying with these requirements may be paid by DHFS from the sum sufficient appropriation created under the bill.

5. Require the labeling of all human remains before disposal with all available identifying information and information concerning the circumstances of death, and require the tagging of the human remains of an individual with a communicable disease.

6. Maintain or require maintenance of a written or electronic record of all human remains that are disposed of and, if it is impossible to identify the human remains, require that fingerprints, photographs, or identifying dental information be obtained and a specimen of deoxyribonucleic acid be collected.

7. Authorize a county medical examiner or county coroner to appoint assistants or deputies, if necessary to perform the duties of the medical examiner or the coroner.

The bill requires a pharmacist or pharmacy to report to DHFS all of the following:

1. An unusual increase in the number of prescriptions dispensed or nonprescription drug products sold for the treatment of medical conditions, as specified by DHFS by rule.

2. An unusual increase in the number of antibiotic drug prescriptions dispensed.

3. Prescriptions dispensed for treatment of a disease that is relatively uncommon or may be associated with bioterrorism.

If DHFS requests, the pharmacist or pharmacy must report personally identifying information, other than a social security number, concerning a person who is dispensed these prescriptions or purchases these nonprescription drug products.

The bill also requires a coroner or medical examiner to report to DHFS and to the local health department any illness or health condition of a deceased that is caused by bioterrorism or by a novel or previously controlled or eradicated biological agent.

This bill directs the laboratory of hygiene board to maintain a roster of scientists and others with technical expertise who are willing to work for the laboratory if the governor declares the existence of an emergency related to public health. The bill provides that if the governor declares such an emergency, the laboratory board must hire as limited-term employees the requisite number of persons from the roster to assist DHFS to perform the duties described above. The bill requires the employer of a person who is hired by the laboratory board to assist DHFS during an emergency related to public health, subject to certain exceptions and conditions, to reemploy the person on completion of that service in the position in which the person would have been employed or in a position of like seniority, status, and pay, and with the seniority that the person would have had, if the person's employment had not been interrupted by that service. In addition, the bill prohibits the employer of such a person from discharging the person, except for cause, for 180 days after reemployment, if the person's service with the laboratory was for more than 30 days, but less than 181 days, or for one year after reemployment, if that service was for more than 180 days. The bill also permits such a person, if covered under an employer-provided health benefit plan, to continue his or her coverage under the plan while absent from employment.

The bill requires a hospital to develop and maintain a system for granting emergency staff privileges to a health care provider who seeks to provide care at the hospital during a period of a state of emergency related to public health. The hospital granting these emergency staff privileges has immunity from civil liability for acts or omissions by the health care provider granted the staff privileges.

Lastly, beginning on July 1, 2002, after first consulting with the adjutant general, local health departments, health care providers, and law enforcement agencies, the bill requires DHFS to report biennially to the governor and to the legislature on the preparedness of the public health system to address public health emergencies. In addition, no later than 90 days after a state of emergency relating to public health is declared and the lead state agency is designated to respond to that emergency and no later than 90 days after the termination of this state of emergency, the lead state agency, either DHFS or the department of military affairs, must submit to the legislature and to the governor a report on the emergency powers used and the expenses incurred by the department and its agents.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB850-engrossed, s. 1 Section 1. 20.285 (1) (fg) of the statutes is created to read:

AB850-engrossed,5,4 20.285 (1) (fg) State laboratory of hygiene; limited-term employees. A sum sufficient to pay the salaries, benefits, and training of limited-term employees under s. 36.25 (11) (em).

AB850-engrossed, s. 2 Section 2. 20.435 (1) (e) of the statutes is created to read:

AB850-engrossed,6,6 20.435 (1) (e) Public health emergency. A sum sufficient to defray all expenses necessary to respond to a state of emergency related to public health only if the governor declares such an emergency and designates the department of health and family services as the lead state agency to respond to the emergency under s. 166.03 (1) (b) 1.

AB850-engrossed, s. 2m Section 2m. 20.465 (3) (e) of the statutes is amended to read:

AB850-engrossed,6,13 20.465 (3) (e) Disaster recovery aid. A sum sufficient to pay the state share of grants to individuals and, to make payments to local governments as defined in 42 USC 5122 (6) under federal disaster recovery programs as authorized in s. 166.03 (2) (b) 8., and to defray all expenses necessary to respond to a state of emergency related to public health declared under s. 166.03 (1) (b) 1. if the department of health and family services is not designated as the lead state agency.

AB850-engrossed, s. 3 Section 3. 21.80 (title) of the statutes, as created by 2001 Wisconsin Act 26, is amended to read:

AB850-engrossed,6,17 21.80 (title) Reemployment rights after national guard or, state defense force, or public health emergency service.

AB850-engrossed, s. 4 Section 4. 21.80 (1) (a) of the statutes, as created by 2001 Wisconsin Act 26, is renumbered 21.80 (1) (a) (intro.) and amended to read:

AB850-engrossed,6,20 21.80 (1) (a) (intro.) "Active service" means active any of the following:

AB850-engrossed,6,23 1. Active service in the national guard or the state defense force under an order of the governor issued under this chapter or active service in the national guard under 32 USC 502 (f) that is not considered to be service in the uniformed services.

AB850-engrossed, s. 5 Section 5. 21.80 (1) (a) 2. of the statutes is created to read:

AB850-engrossed,7,4 21.80 (1) (a) 2. Active service with the state laboratory of hygiene under s. 36.25 (11) (em) for the purpose of assisting the department of health and family services under s. 250.042 during a state of emergency relating to public health declared by the governor under s. 166.03 (1) (b) 1.

AB850-engrossed, s. 6 Section 6. 21.80 (3) (a) 4. of the statutes, as created by 2001 Wisconsin Act 26, is amended to read:

AB850-engrossed,7,9 21.80 (3) (a) 4. The person's In the case of active service in the national guard or the state defense force, the active service has not been terminated under other than honorable conditions.

AB850-engrossed, s. 7 Section 7. 21.80 (3) (c) 1. of the statutes, as created by 2001 Wisconsin Act 26, is amended to read:

AB850-engrossed,7,14 21.80 (3) (c) 1. Any period of active service, as defined in sub. (1) (a) 1., beyond that 5-year period that is required to complete an initial period of obligated active service.

AB850-engrossed, s. 8 Section 8. 21.80 (3) (c) 2. of the statutes, as created by 2001 Wisconsin Act 26, is amended to read:

AB850-engrossed,7,20 21.80 (3) (c) 2. Any period of active service, as defined in sub. (1) (a) 1., for which the person, through no fault of the person's own, was unable to obtain orders releasing the person from a period of active service before the expiration of the 5-year period.

AB850-engrossed, s. 9 Section 9. 21.80 (3) (c) 3. of the statutes, as created by 2001 Wisconsin Act 26, is amended to read:

AB850-engrossed,8,2 21.80 (3) (c) 3. Any period of active service, as defined in sub. (1) (a) 1., that was performed to fulfill any additional training requirements determined and certified in writing by the federal secretary of the army, the federal secretary of the air force, or the adjutant general to be necessary for professional development or for completion of skill training or retraining.

AB850-engrossed, s. 10 Section 10. 21.80 (3) (f) 1. of the statutes, as created by 2001 Wisconsin Act 26, is amended to read:

AB850-engrossed,8,12 21.80 (3) (f) 1. A person who submits an application for reemployment under par. (e) 2. or 3. must, on the request of the person's employer, provide to the employer documentation to establish that the application was submitted within the time limits specified in par. (e) 2. or 3., that the person's cumulative length of all absences from employment with the employer because of active service or service in the uniformed services does not, except as permitted under par. (c), exceed 5 years, and, in the case of active service in the national guard or the state defense force, that the person's service was not terminated under other than honorable conditions.

AB850-engrossed, s. 11 Section 11. 36.25 (11) (em) of the statutes is created to read:

AB850-engrossed,8,21 36.25 (11) (em) The laboratory of hygiene board shall create and maintain a roster of scientists and other persons with technical expertise who are willing to work for the laboratory of hygiene if the governor declares that an emergency related to public health exists. If the governor declares such an emergency, the laboratory of hygiene board shall hire as limited-term employees the requisite number of persons from the roster to assist the department of health and family services under s. 250.042. Salaries, benefits, and training of these employees shall be paid from the appropriation under s. 20.285 (1) (fg).

AB850-engrossed, s. 11d Section 11d. 50.36 (3d) of the statutes is created to read:

AB850-engrossed,8,25 50.36 (3d) (a) A hospital shall develop and maintain a system under which the hospital may grant emergency staff privileges to a health care provider, as defined in s. 146.81 (1), to whom all of the following apply:

AB850-engrossed,9,3 1. The health care provider seeks to provide care at the hospital during a period of a state of emergency related to public health declared by the governor under s. 166.03 (1) (b) 1.

AB850-engrossed,9,6 2. The health care provider does not have staff privileges at the hospital at the time that the state of emergency related to public health is declared by the governor under s. 166.03 (1) (b) 1.

AB850-engrossed,9,7 3. The health care provider has staff privileges at another hospital.

AB850-engrossed,9,10 (b) A hospital that grants emergency staff privileges under par. (a) has immunity from civil liability for acts or omissions by a health care provider who is granted emergency staff privileges under par. (a).

AB850-engrossed, s. 12 Section 12. 95.22 of the statutes is renumbered 95.22 (1).

AB850-engrossed, s. 13 Section 13. 95.22 (2) of the statutes is created to read:

AB850-engrossed,9,14 95.22 (2) The department shall provide the reports of any communicable diseases under sub. (1) to the department of health and family services.

AB850-engrossed, s. 14 Section 14. 157.055 of the statutes is created to read:

AB850-engrossed,9,17 157.055 Disposal of human remains during state of emergency relating to public health. (1) In this section:

AB850-engrossed,9,18 (a) "Funeral establishment" has the meaning given in s. 445.01 (6).

AB850-engrossed,9,19 (b) "Public health authority" has the meaning given in s. 250.01 (6g).

AB850-engrossed,9,23 (2) Notwithstanding ss. 69.18 (4), 445.04 (2), 445.14, 979.01 (3), (3m), and (4), 979.02, and 979.10, during a period of a state of emergency related to public health declared by the governor under s. 166.03 (1) (b) 1., a public health authority may do all of the following:

AB850-engrossed,10,3 (a) Issue and enforce orders that are reasonable and necessary to provide for the safe disposal of human remains, including by embalming, burial, cremation, interment, disinterment, transportation, and other disposal.

AB850-engrossed,10,4 (b) Take possession and control of any human remains.

AB850-engrossed,10,9 (c) Order the disposal, through burial or cremation, of any human remains of an individual who has died of a communicable disease, within 24 hours after the individual's death and consider, to the extent feasible, the religious, cultural, or individual beliefs of the deceased individual or his or her family in disposing of the remains.

AB850-engrossed,10,17 (d) If reasonable and necessary for emergency response, require a funeral establishment, as a condition of its permit under s. 445.105 (1), to accept human remains or provide the use of its business or facility, including by transferring the management and supervision of the funeral establishment to the public health authority, for a period of time not to exceed the period of the state of emergency. Reasonable and necessary expenses of a funeral establishment in complying with the requirements under this paragraph may be paid by the department from the appropriation under s. 20.435 (1) (e).

AB850-engrossed,10,22 (e) Require the labeling of all human remains before disposal with all available identifying information and information concerning the circumstances of death and, in addition, require that the human remains of an individual with a communicable disease be clearly tagged to indicate that remains contain a communicable disease and, if known, the specific communicable disease.

AB850-engrossed,11,4 (f) Maintain or require the maintenance of a written or electronic record of all human remains that are disposed of, including all available identifying information and information concerning the circumstances of death and disposal. If it is impossible to identify human remains prior to disposal, the public health authority may require that a qualified person obtain any fingerprints, photographs, or identifying dental information, and collect a specimen of deoxyribonucleic acid from the human remains and transmit this information to the public health authority.

AB850-engrossed,11,16 (g) Notwithstanding s. 59.34 (1) or 59.35 (1), authorize a county medical examiner or a county coroner to appoint emergency assistant medical examiners or emergency deputy coroners, whichever is applicable, if necessary to perform the duties of the office of medical examiner or coroner, and to prescribe the duties of the emergency assistant medical examiners or emergency deputy coroners. The term of any emergency appointment authorized under this paragraph may not exceed the period of the state emergency. A county medical examiner or county coroner may terminate an emergency appointment before the end of the period of the state emergency, if termination of the appointment will not impede the performance of the duties of his or her office. From the appropriation under s. 20.435 (1) (e), the department shall reimburse counties for the cost of any emergency medical examiners or emergency deputy coroners appointed under this paragraph.

AB850-engrossed, s. 15 Section 15. 166.02 (1p) of the statutes is created to read:

AB850-engrossed,11,18 166.02 (1p) "Biological agent" means any of the following:

AB850-engrossed,11,20 (a) A select agent that is a virus, bacterium, rickettsia, fungus, or toxin that is specified under 42 CFR 72, Appendix A.

AB850-engrossed,11,23 (b) A genetically modified microorganism or genetic element from an organism under par. (a) that is shown to produce or encode for a factor associated with a disease.

AB850-engrossed,11,25 (c) A genetically modified microorganism or genetic element that contains nucleic acid sequences coding for a toxin under par. (a) or its toxic subunit.

AB850-engrossed,12,1 (d) An agent specified by the department of health and family services by rule.