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COVID-19 Wisconsin Update #68 (5-16-20)

Updated numbers released on Friday:

The Wisconsin Department of Health Services and the Wisconsin Hospital Association released updated numbers on Friday:

  • 356 Current Hospital Admissions (125 patients in ICU)
    • The total number of hospital admissions increased by 4 (+4) on Friday.
    • The total number of ICU patients increased by 5 (+5) on Friday.
  • Cumulatively there have been 11,685 positive tests and 128,657 negative tests in Wisconsin:
    • There were 410 positive test results reported on Friday on 6,469 tests (6.3% positive rate).
  • Deaths from COVID-19 now total 445 in Wisconsin:
    • There were 11 deaths reported on Friday
  • 6,250 patients who have tested positive for COVID-19 and are listed as having recovered. (last updated by DHS on 5/15)

 

Sources: 

Wisconsin Hospital Association (WHA) COVID-19 Situational Awareness Update site
DHS COVID-19: County Data; https://www.dhs.wisconsin.gov/covid-19/county.htm

Badger Bounce Back Gating Criteria

Governor Tony Evers’ Badger Bounce Back gating criteria took a step back on Friday with a second status now showing red;

  • Downward trajectory of influenza-like illnesses (ILI) reported within a 14-day period.
  • Downward trajectory of COVID-like syndromic cases reported within a 14-day period.

Regarding the influenza-like illnesses reported, there has been a downward trend, but according to the DHS analysis it is not statistically significant. The data on the website lags by two days, but when this indicator was last green (May 8th) there were less reported cases on May 13th (34) than on May 8th (45).

Similarly the for the COVID-like syndromic cases reported, there is also a downward trend, but again DHS analysis suggests it is not statistically significant.

Governor approves Scope Statement

Governor Tony Evers approved Department of Health Services Secretary-designee Andrea Palm’s State of Scope for an Administrative Rule to maintain the provisions of the “Safer-At-Home” order extension.

According to the scope statement, 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.”

The Scope Statement will be open for a potential public hearing or public comments for a 10-day period, beginning on Monday. After the 10-day public comment period DHS can beginning writing the rule that meets the scope statement. There are several points during the rule-making process where the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) has oversight, which would incentivize the Administration and Legislature working together on the Rule.

Whether the Administration and the Legislature will work collaboratively to draft the rule or if the proposed rule is something that the Legislature reacts to, remains to be seen, but some insight was given on Friday as to the fate of the current proposed Scope Statement when Co-Chair of the JCRAR, State Senator Steve Nass (R-Whitewater), asked Governor Evers to withdraw this scope statement because it seeks to restore the provisions of the Governor’s “Safer-At-Home” order extension. Senator Nass released the following statement;

“The Wisconsin Supreme Court clearly ruled that Governor Evers and DHS Secretary-Designee Andrea Palm acted improperly and illegally by forcing every citizen of Wisconsin to stay home, close certain businesses, prohibit freedom of association and harshly restrict personal travel by the threat of criminal penalty including arrest and jail time.

Now, most rational public servants would get the message that the rule of law and the constitutional limitations on government are not optional or mere suggestions. The DHS Scope Statement leaves little doubt that Secretary- Designee Palm is no longer acting in a lawful capacity by circumventing the Supreme Court ruling and once again trying to improperly take control of the daily lives of every Wisconsin citizen.

The statutory powers of the Joint Committee on Administrative Rules (JCRAR) to suspend Emergency Rules are not in doubt. DHS is needlessly creating a political fight that does nothing to move the state forward on the legal and proper path of fighting Covid-19.

I call on Governor Evers to withdraw the Scope Statement and end this needless confrontation before it escalates and leads to greater public discontent with the public health officials in this state.”

How local authorities are handling the Supreme Court decision:

There have been several FAQs and guidance documents released by the Wisconsin Counties Association, the League of Wisconsin Municipalities and Attorney General Josh Kaul which have created a rollercoaster of activity related to the implementation and rescinding of local health authority orders related to the Supreme Court decision. Below are excerpts of the FAQs and guidance that have been provided;

Guidance from the League of Wisconsin Municipalities:

In the absence of a county or local health department order, does a municipality have authority to impose restrictions similar to Safer at Home, such as prohibiting public gatherings of a certain size and closing businesses?

The answer is unclear. Wisconsin Stat. § 323.14(a), which sets forth local government’s powers and duties during an emergency, provides that “the emergency power of the governing body conferred under s. 323.11 includes the general authority to order, by ordinance or resolution, whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency and includes the power to bar, restrict, or remove all unnecessary traffic, both vehicular and pedestrian, from the highways…” The italicized language is written quite broadly, so it is possible a municipality could exercise its emergency powers to enact restrictions similar to Safer at Home. However, it is unclear whether a court would find the scope of authority under § 323.14(a) to extend that far. In contrast, Wis. Stat. § 252.03, governing communicable diseases, gives local health departments the authority to do what is reasonable and necessary to prevent and suppress disease, and provides that they may forbid public gatherings when deemed necessary to control outbreaks or epidemics. 5/14/20 (Source)

Guidance from the Wisconsin Counties Association:

Validity of Local Health Orders.

Many local health officers have issued orders under the authority granted by Wis. Stat. § 252.03 and other local health officers may be contemplating the issuance of orders similar to the Safer at Home Order. While Wis. Stat. § 252.03 provides a local health officer with broad regulatory authority, enforcement of local health orders proceeds under the same statute relating to enforcement of statewide orders like Safer at Home – Wis. Stat. § 252.25. This is the same statute that the Court cited in its decision as problematic in terms of enforcement of the Safer at Home Order. As a result, it is unclear whether a local health order would, in the Court’s view, suffer from the same deficiencies that caused the Court to invalidate the Safer at Home Order. (Source)

Attorney General Josh Kaul Interim Emergency AG Opinion:

First, the supreme court’s decision addressed only DHS’s authority found in Wis. Stat. § 252.02. That statute does not govern the authority of local health officers, which is separately set out in Wis. Stat. § 252.03. That separate grant of local authority provides, among other things, powers to “prevent, suppress and control communicable diseases” and “forbid public gatherings when deemed necessary to control outbreaks or epidemics.” Wis. Stat. § 252.03(1)–(2).1 Because the court decision addressed a different statute applicable to a state agency, and not the statute applicable to local authorities, the Palm decision is not directly controlling on powers under the latter statute.

Second, although the court did not directly address Wis. Stat. § 252.03, there are statements about criminal sanctions in the Palm decision that local authorities should consider. The court concluded that Safer at Home “does not rely on a statute within ch. 252 defining the elements of the crime” and that “in order to constitute criminal conduct proscribed by statute, the conduct must be set out with specificity in the statute to give fair notice.” Palm, 2020 WI 42, ¶¶ 37, 40.2 It is advisable to limit enforcement under Wis. Stat. § 252.03 to ordinances or administrative enforcement.

Third, the Palm decision highlighted three particular exercises of DHS’s powers as outside the scope of its statutory authority under Wis. Stat. § 252.02: directing people to stay at home, forbidding certain travel, and closing certain businesses. Even as to those three measures, the analysis may not apply to local powers under Wis. Stat. § 252.03. The court’s reasoning emphasized the availability of criminal sanctions for violations, and applied an interpretative analysis using provisions of 2011 Wis. Act 21 and Wis. Stat. ch. 227 that apply only to state agencies. Palm, 2020 WI 42, ¶¶ 45–47, 51, 52. A local order issued under Wis. Stat. § 252.03 that does not threaten criminal penalties, as recommended above, cannot run afoul of the court’s first concern, and 2011 Wis. Act 21 and chapter 227 would not apply to a local authority. Nevertheless, the local authority should ensure that any measures that direct people to stay at home, forbid certain travel, or close certain businesses speak specifically to the local authority’s statutory power to “prevent, suppress and control communicable diseases” and “forbid public gatherings when deemed necessary to control outbreaks or epidemics.” Wis. Stat. § 252.03(1)–(2).

Fourth, nothing in the supreme court’s decision even arguably limits other measures directed by a local authority under Wis. Stat. § 252.03. The court rested its rejection of Safer at Home’s provisions other than staying at home, travel, and business closure solely on its conclusion that DHS had to engage in emergency rulemaking under Wis. Stat. § 227.24. Palm, 2020 WI 42, ¶¶ 2–4, 58–59. Local authorities are not subject to chapter 227, and so that reasoning has no application to an order issued by a local authority.  (Source)

Here is our current understanding of where communities are at with their Local Authority Health Orders (please note these have been changing frequently)

Local Authority Health Orders that have been rescinded:

Local Authority Health Orders that are currently in place:

 

Immediately issued guidance but no orders:

Updated Charts

Daily Numbers:

 

Cumulative Numbers:

Previous Wisconsin COVID-19 Updates

Previous COVID-19 Updates are archived here

Here is a comprehensive list of State of Wisconsin resources related to the public health emergency (LINK)

 

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