Governor Evers Signs 2019 Wisconsin Act 185

Governor Tony Evers signed 2019 Wisconsin Act 185 (“Act 185” or “the Act”) into law on April 15, 2020. The Act produced a series of statutory changes concerning the COVID-19 pandemic and its impact on Wisconsin school districts.

Nonstatutory Provisions

On April 16, 2020, the Department of Public Instruction (“DPI” or “the Department”) emailed Wisconsin District Administrators concerning the nonstatutory provisions of the Act.

DPI noted that Act 185 required DPI to publish a report on school operations during the period that schools were closed due to COVID-19. The email went on to note that Act 185 “suspends the state testing requirements for the 2019-20 school year” and “prohibits the Department of Public Instruction (DPI) from issuing state school and district report cards in the 2020-21 school year …”.

DPI advised that school boards are required to provide information for DPI’s report to the legislature no later than November 1, 2020, and that DPI will be creating a form in order to collect that information. DPI also noted that its report has to be filed with the legislature by January 1, 2021.

According to DPI, the report is required to address the following measures:

1.  Whether or not virtual instruction was implemented in the school district during the public health emergency and, if implemented, in which grades it was implemented.

2.  If virtual instruction was implemented in the school district during the public health emergency, the process for implementing the virtual instruction.

3.  For each grade level, the average percentage of the 2019−20 school year curriculum provided to pupils, including curriculum provided in−person and virtually.

4.  Whether anything was provided to pupils during the 2020 summer to help pupils learn content that pupils missed because of the public health emergency and, if so, what was provided to pupils.

5.  Recommendations for best practices for transitioning to and providing virtual instruction when schools are closed.

6.  Any challenges or barriers the school board faced related to implementing virtual instruction during the public health emergency.

7.  By position type, the number of staff members who were laid off during the public health emergency.

8.  The number of lunches the school board provided during the public health emergency.

9.  The total amount by which the school board reduced expenditures during, or because of, the public health emergency in each of the following categories:

a.  Utilities.

b.  Transportation.

c.  Food service.

d.  Personnel. This category includes expenditure reductions that result from layoffs.

e.  Contract terminations.

Statutory Provisions Affecting Wisconsin School Districts

Act 185 modified state statutes related to school district government and operations in several respects. A summary of selected changes to state law follows:

1.  Waivers of statutory and regulatory requirements. One of the more important changes to state law made by Act 185 concerns DPI’s authority to waive certain statutes and regulations that apply to school districts.

State law has always provided that a school district can request a waiver of the instructional hours mandated by statute if school is closed “by order of a local health officer, as defined in s. 250.01(5), or the department of health services.” Wis. Stats. §§ 115.01(10)(b) and 118.38(2)(bm). At the time Act 185 was passed, DPI had already advised school districts that the COVID-19 pandemic and state officials’ corresponding closure of Wisconsin schools met the criteria established by the Department. Accordingly, DPI assured school districts that a request to waive the annual hours of direct pupil instruction requirement would be granted.

As an article by Attorney Geoffrey Lacy of our firm noted, a waiver of the pupil instruction hours requirement must be for a period of 4 years. Act 185 did not change this component of the statute. As a result, waivers of the direct pupil instruction hours requirement are for a period of 4 years.

Act 185 also vested the Department with more broad authority to waive other requirements that fall under its jurisdiction.

The Act states that “[b]eginning on the first day of the public health emergency declared on March 12, 2020, by executive order 72, and ending on October 31, 2020, the Department may do all of the following …”. The language that follows gives DPI the authority to “[w]aive any requirement in Chs. 115 to 121 or the administrative rules promulgated by the department under the authority of those chapters related to any of the following …”. Wis. Stat. § 118.38(4)(a).

The new statutory language also identifies a series of statutes or rules that the Department can waive beginning on March 12, 2020 and ending on October 31, 2020 as including special needs scholarships, parental choice programs, the Milwaukee Parental Choice Program, and certain provisions concerning private and charter schools. Wis. Stat. § 118.38(4)(a)1.

In addition, DPI is granted the authority to establish an “alternate deadline” for any requirement related to certain programs, including programs and services for school age parents and parental choice programs. Wis. Stat. § 118.38(4)(a)2. However, the authority to establish an alternate deadline related to these programs or their requirements can only be granted if the deadline occurs during the period beginning on March 12, 2020, and ending on October 31, 2020, or is related to a deadline for a requirement that affects a date during that period. Wis. Stat. § 118.38(4)(a)2, a and b.

Finally, state agencies and local government units (including school districts) are granted additional authority to suspend deadlines that fall within the “emergency period” for COVID-19, provided that the deadline is one that the agency or local government unit administers or enforces. Wis. Stat. § 323.265. Under this portion of Act 185, the term “emergency period” means the period covered by the public health emergency declared on March 12, 2020, by executive order 72, plus 30 days.” However, the term “deadline” is put broadly and means “any date certain by which, or any other limitation as to time within which, an action or event is required to occur.” See, Wis. Stat. § 323.265(1)(b) and (c). Thus, state agencies and local governmental units have broad authority to suspend applicable deadlines on any number of subjects, except that deadlines for filing or payment of taxes and the date on which an election is to be held (and any deadline related to an election) cannot be suspended. Wis. Stat. § 323.265(1)(b)1 and 2.

2.  School district reports. Under prior law, DPI was required to publish a school and school district accountability report on an annual basis. Wis. Stat. § 115.385(1). However, under Act 185, this requirement has been modified to account for the impact of the COVID-19 pandemic on Wisconsin school districts. As a result, DPI is prohibited from publishing a school and school district accountability report in the 2020-21 school year. Wis. Stat. § 115.385(6). However, Act 185 preserves the requirement that the Department publish these reports on an annual basis by November 30 in subsequent school years.

3.  Educator effectiveness evaluations. Act 185 specifies that a school board and “the operator of a charter school established under s. 118.40(2r) may not consider pupil performance on statewide assessments administered under s. 118.30 in the 2019-20 school year …”. Wis. Stat. § 115.415(1)(b). This provision goes on to state that pupil performance may not be used “in the evaluation score assigned to a teacher or principal under the Educator Effectiveness Evaluation system developed under this section.” Consequently, Act 185 resurrects the prohibition that was originally in place for the 2014-15 school year and directs that pupil performance cannot be considered in evaluating teachers and principals under statutory educator effectiveness procedures.

4.  Self-insured health care plans. School districts have the authority to provide health care benefits to district employees on a self-insured basis if a school district has at least 100 employees. Wis. Stat. § 120.13(2). However, state statutes also specify that every self-insured plan has to comply with a series of other statutory requirements.

Act 185 establishes a series of insurance regulations related to COVID-19 that apply equally to fully insured health care plans and self-insured plans. Wis. Stat. § 632.729. For example, insurance plans cannot establish rules of eligibility for any individual to enroll in an insurance plan, to remain enrolled in such a plan, or for the renewal of coverage under the plan based on a “current or past diagnosis or suspected diagnosis of COVID-19.” Wis. Stat. § 632.729(2).

In addition, a fully insured or self-insured plan cannot cancel coverage due to a current or past diagnosis of COVID-19 (or suspected diagnosis of COVID-19), and cannot set premium rates based on a current, past, or suspected diagnosis of COVID-19. Wis. Stat. § 632.729(3) and (4).

Finally, an insurer or self-insured plan “may not refuse to grant to an individual, employer, or other group a grace period for the payment of a premium based on an individual’s, employee’s, or group member’s current or past diagnosis of COVID-19 or suspected diagnosis of COVID-19 if a grace period for payment of premium would generally be granted under the plan.” Wis. Stat. § 632.729(5).

School districts are, as noted, entitled to these protections for their employees under fully-insured group health plans. However, school districts that have self-insured plans must bear in mind that their third party administrator is not necessarily the only party that might be held liable for violations of these provisions. Instead, the school district may be responsible for decisions made by the third party administrator in determining rates, coverage, and grace periods. To be sure, a contract with a third party administrator could include language stipulating that the administrator indemnifies and holds the school district harmless; however, these provisions are unusual and, in any event, it is not prudent to rely on this type of language as the school district’s sole line of defense Accordingly, school districts that have self-insured plans or partially self-insured plans should revisit their plan documents and agreements with third party administrators to ensure compliance with Act 185.

5.  Immunity for health care providers. Act 185 establishes immunity from civil liability “for the death of or injury to any individual or any damages caused by actions or omissions committed by certain persons providing services during the state of emergency declared on March 12, 2020 by executive order 72 or the 60 days following the date that the state of emergency terminates.” Immunity is extended to “any health care professional, health care provider, or employee, agent or contractor of a health care professional or health care provider …”. Wis. Stat. § 895.4801(1)(2). The term “health care professional” means an individual licensed, registered, or certified by the medical examining board under subch. II of Ch. 448 or the board or nursing under Ch. 441.” Wis. Stat. § 895.4801(1)(a). The actions or omissions that are protected relate to health services provided or not provided in good faith, or that have been provided in a manner that is substantially consistent with “direction, guidance, recommendation, or other statement(s)” made or published by government authorities. Wis. Stat. § 895.4801(2)(b)1 and 2.

This means, for example, that a school nurse providing services that are related to COVID-19 may be immune from civil claims concerning the manner in which those services have been provided.

6.  Full time open enrollment. Act 185 includes a series of specific deadlines for open enrollment applications and governs any applications to attend a public school in a non-resident school district under Wis. Stat. § 118.51 during the 2020-21 school year.

These deadlines are as follows:

a.  May 29, 2020: a parent of a pupil must submit an application to a non-resident school district.

b.  June 1, 2020: a non-resident school board must send a copy of an application to a pupil’s resident school board and the department by the end of the day.

c.  June 8, 2020: a resident school board must send a copy of a pupil’s individualized education program to a non-resident school district.

d.  June 1, 2020: a non-resident school board may not act on any application received before this date.

e.  July 2, 2020: a non-resident school board must notify an applicant of whether the applicant’s application has been accepted.

f.  July 9, 2020: a resident school board must notify an applicant and the non-resident school board that an application has been denied.

g.  July 31, 2020 (or within 10 days of receiving notice of acceptance if a pupil is selected from a waiting list): a pupil’s parent must notify a non-resident school board of the pupil’s intent to attend school in the non-resident school district in the 2020-21 school year by this date.

h.  August 7, 2020: a non-resident school board that has accepted a pupil for attendance must report the name of the pupil to the pupil’s resident school board by this date.

i.  June 5, 2020: A resident school board must provide a pupil’s disciplinary records to the non-resident school board by this date.

The nonstatutory provisions of Act 185 establish these modified deadlines.

ACT 185, Section 105(24). Consequently, the language of the open enrollment statute remains unchanged and, presumably, will govern open enrollment applications in future school years.

Conclusion

Act 185 provides for a number of changes that are important to Wisconsin school districts. To be sure, any number of issues remain unresolved: for example, the details on how students will progress from one grade level to the next and graduate from Wisconsin high schools presents any number of unsettled questions.

Further, Act 185 is not a relief bill, at least not in the main. As a result, much work remains to be done at the state and federal level to assist Wisconsin school districts and the constituencies they serve.

We can expect the state and federal government to continue to wrestle with the impact of COVID-19 on our state, the nation, and world in the coming weeks. We will, of course, keep you apprised of future developments.