The proposed emergency rule is intended to balance two complementary objectives: (1) “boxing in” COVID-19 to limit its spread to healthy Wisconsinites; and (2) reopening and support of the Wisconsin economy without creating undue risk of spreading the virus and thereby causing additional long-term economic disruptions.
With regard to the first objective, the goal is to suppress and contain the spread of COVID-19, to save lives and prevent the State of Wisconsin’s health care system from being overwhelmed; to allow time for the continued production and deployment of expansive testing, contact tracing, and development of stores of scarce resources (such as ventilators, and PPE); and to create safe environments and reasonable measured increments of relaxing social distancing requirements, while maintaining measures that have been proven to slow and contain the spread of COVID-19. The proposed rule is likely to include a variety of temporary measures in ch. DHS 145 designed to achieve that goal consistent with the decision in Wisconsin Legislature v. Palm, including, but not limited to: limitations on the number of persons in a given confined space; requirements for social distancing; limitations on mass gatherings; and basic safeguards for businesses to protect employees and visitors.
With regard to the second objective of turning the dial toward reopening the economy, the proposed rule may establish a phased approach to reopening Wisconsin’s economy and society, with each phase being incrementally less restrictive on businesses and individuals while protecting the public from COVID-19.
3. Description Of The Existing Policies Relevant To The Rule, New Policies Proposed To Be Included In The Rule, And An Analysis Of Policy Alternatives:
Because there is no vaccine and no treatment for COVID-19 there is presently no viable alternative to the kinds of social distancing, reducing in-person contact, and related measures to control the spread of the disease that have been adopted in most states. Procedurally, the only alternative to proceeding with emergency rulemaking would be legislative action to address the goals of the proposed emergency rule.
The proposed rule may model Wisconsin’s phased reopening plan on federal guidelines that suggest states take a phased approach to reopening. The federal guidelines recommend a three-phase approach with a focus on downward trajectory of symptoms and cases, as well as having robust systems in place for the State of Wisconsin’s hospitals. DHS previously articulated such an approach in Emergency Order #31, the Badger Bounce Back, which was designed to work in tandem with Emergency Order #28. Accordingly, the proposed emergency rule may re-articulate some or all the parameters specified in Badger Bounce Back and balance them against the goals inherent in the Safer-at-Home Extension, consistent with the Supreme Court’s order. The proposed rule may also look at other models and guidelines for social distancing and reopening Wisconsin, including the approaches taken by other states. The proposed rule will recognize that opening up the economy without thoughtful evaluation of the risk of infection to Wisconsin citizens could cause the rate of infection to spike, deteriorating the progress that has been made, and potentially triggering extensive spread of COVID-19. The proposed rule will implement measures to reduce and slow the rate of infection of COVID-19, to reduce strain on the health care system, to mitigate economic hardship, and to save lives.
4. Detailed Explanation Of Statutory Authority For The Rule (Including The Statutory Citation And Language):
DHS has the explicit authority and duty to make rules to protect the public in the event of an outbreak of a communicable disease under s. 252.02, Stats.:
252.02 Powers and duties of department.
. . .
(3) The department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.
(4) Except as provided in ss. 93.07(24)(e) and 97.59, the department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable disease, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease and for the sanitary care of jails, state prisons, mental health institutions, schools, and public buildings and connected premises. Any rule or order may be made applicable to the whole or any specific part of the state, or to any vessel or other conveyance.
. . .
(6) The department may authorize and implement all emergency measures necessary to control communicable diseases.
The department’s rulemaking and emergency rulemaking authority is further provided in ss. 227.11 and 227.24, Stats.:
227.24 Emergency rules; exemptions.
(a): An agency may, except as provided in s. 227.136 (1), promulgate rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.
227.11 Agency rule-making authority.
. . .
(2) Rule-making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer rule-making authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Under these statutes, DHS is explicitly delegated the authority to promulgate rules as necessary for the control and suppression of communicable disease in this state, including COVID-19, and for the quarantine and disinfection of persons, localities, or things infected or suspected of being infected by COVID-19. DHS further has clear, broad, and explicit authority to close schools and forbid public gatherings in schools, churches, or other places. This statutory delegation of authority does not impose any bright-line rule as to the gathering sizes DHS may require or on the places where such limits may be put into effect. Instead, DHS is authorized to impose such controls to the extent DHS finds they are necessary to “control outbreaks and epidemics.” DHS is further granted the explicit authority to implement all other emergency measures necessary to control communicable diseases, and DHS has explicit authority to make its rules applicable to the whole or any specific part of the state.
The majority opinion in Wisconsin Legislature v. Palm held that the Safer-at-Home Extension order was a rule subject to statutory emergency rulemaking procedures, and thereby affirmed DHS’s rulemaking authority under Wis. Stat. § 252.02. The majority also held that certain provisions in the Safer-at-Home Extension went beyond what is authorized by particular subsections in Wis. Stat. § 252.02, but did not define the precise scope of DHS’s authority under that statute.
In drafting the proposed rule, part of DHS’s decision process will include a determination of which measures DHS finds are necessary to control the spread of COVID-19 and to prevent and control further outbreaks of the disease, within applicable constitutional and statutory limits. Due to the demonstrated communicability of COVID-19 and the potential for deadly effects if COVID-19 is allowed to spread unchecked, DHS has determined that continued social distancing and other measures to be considered as described above will be necessary going forward to control the spread of COVID-19 and ensure the health, safety, and welfare of the people of Wisconsin.
Finally, like all agencies, DHS has been delegated the explicit statutory authority to promulgate rules interpreting the provisions of any statute enforced or administered by” DHS, to the extent that DHS “considers it necessary to effectuate the purpose of the statute.” Wis. Stat. s. 227.11 (2) (a). The emergency rules drafted pursuant to this statement of scope will interpret provisions of chapter 252 of the Wisconsin statutes to the extent necessary to effectuate the purpose of those statutes.
5. Estimate Of Amount Of Time That State Employees Will Spend Developing The Rule And Of Other Resources Necessary To Develop The Rule:
Due to the nature of the emergency, DHS will proceed as quickly as possible to develop the rule. DHS estimates that it will take an indeterminate number of hours to develop this emergency rule due to the novel situation and the constantly changing and uncertain nature of the pandemic. Beyond state employee time, additional resources may be required to ensure that the rule adequately protects the lives of Wisconsinites.
6. Entities Potentially Affected By Proposed Rule:
Entities that may be affected include the following: Wisconsin residents, at large; Wisconsin businesses and non-profit organizations; Wisconsin schools and universities; libraries; public health operations; first responders; tribal and local governments; and the health care industry.
7. Summary And Preliminary Comparison With Any Existing Or Proposed Federal Regulation That Is Intended To Address The Activities To Be Regulated By The Proposed Rule:
None. Federal law has not established any safer-at-home rules or regulations, nor any regulations for the process of reopening. DHS knows of no existing or proposed federal regulation that addresses the activities of this rule.
Mark R. Thompson, Admin. Rules Attorney
Department of Health Services
Office of Legal Counsel
Jackson Keuler, Admin. Rules Officer
Department of Health Services
Office of Legal Counsel