Although Wisconsin hospitals have remained busy providing COVID-related treatment and services for the last two months, many Wisconsin health care providers chose to postpone elective surgeries and procedures in compliance with CMS guidance. Notably, Wisconsin never expressly prohibited elective surgeries or procedures at any point during the last few months; however, Emergency Orders #12 and #28 specified that individuals may obtain services at ambulatory surgery centers for response to urgent health issues or related COVID-19 activities. Further, guidance from the Wisconsin DHS Division of Public Health issued on March 20 recommended that dental practices postpone all elective and non-urgent care treatment.  With the issuance of the Badger Bounce Back Plan (the “BBB Plan”), Wisconsin facilities and providers have expressed their intent to prep for elective services and procedures. Providers furnishing services during the state of emergency declared by Executive Order #72, and for sixty (60) days following the date that the state of emergency terminates (“Immunity Period”) will be afforded civil immunity under Wisconsin Act 185 (“Act 185”) if certain criteria are met. Under Act 185, providers will receive civil immunity for the death or injury of any individual or damages caused as a result, for acts or omissions furnished during the Immunity Period, that are:

• Related to health services provided (or not provided) in good faith, or are “substantially consistent” with (a) any direction, guidance, recommendation or other statement made by a federal, state or local official to address or in response to the public health emergency; or (b) any guidance published by Wisconsin DHS or any divisions or agencies of the U.S. Department of Health and Human Services (“HHS”) relied upon in good faith; and are
• Absent of reckless or wanton conduct or intentional misconduct.

Providers preparing to resume elective and non-COVID-19 procedures should follow the applicable guidance and recommendations issued by Wisconsin DHS and HHS to ensure protection under Act 185.

Badger Bounce Back Plan

The Department of Health Services issued Emergency Order #31 on April 20, 2020, establishing the BBB Plan.  The BBB Plan is the State’s plan to decrease COVID-19 cases and deaths to a low level and increase health care system capacity in order to facilitate the reopening of businesses across the State and is based on the White House’s guidelines for Opening Up America Again. The plan is broken down into four phases, starting with “Safer at Home” and moving through phases until ultimately all business activity and gatherings are resumed with minimal protective and preventative measures in place for the general public and more protective measures for vulnerable populations.  Currently, Wisconsin does not meet the all of necessary criteria to reopen, which involves progression through certain phases of testing for COVID-19, contact tracing, tracking the spread of COVID-19, procuring personal protective equipment and assessing healthcare capacity at health care facilities. The BBB Plan and related guidance provided by Wisconsin does not specifically address how health care providers will begin resuming the provision of non-COVID related services, including elective surgeries and procedures.  Instead it focuses on how the State will work to achieve its goals in meeting gating criteria in order to move forward through the BBB Plan phases.

Emergency Order No. 35

Wisconsin’s Emergency Order  #35 (“EO35”), signed on May 4, 2020 by Governor Evers and Secretary Palm, provides some guidance for health care providers on moving forward while also noting that the BBB Plan is still in effect. EO35 suspends some administrative rules for the Wisconsin DHS and Department of Safety and Professional Services with the goal of allowing health care and emergency services workers to maximize the time and resources they can dedicate to patient care during the COVID-19 pandemic. For example, EO35 allows nurses to bill Medicaid for overtime. The order also allows for telehealth and other electronic communications within mental health and substance abuse disorder treatment programs, and suspends the requirement that emergency mental health services, community support programs, and community substance abuse services must happen in a face-to-face setting. In addition, EO35 suspends certain administrative rules in order to ensure that no Medicaid member will lose eligibility for coverage during the COVID-19 emergency, a requirement for receiving additional federal funding under the Families First Coronavirus Response Act, allowing Wisconsin to address increased enrollment and higher usage of Medicaid services as a result of the pandemic and its impact on the economy.