On April 15, Gov. Tony Evers signed into law legislation on COVID-19 that included liability protections for health care workers and a limited liability provision for manufacturers. The bill was sent to the governor after passing on a bipartisan basis in both the Senate and Assembly.

The bill (AB 1038, now 2019 Wisconsin Act 185) includes provisions to: 

1. Exempt manufacturers, distributors and sellers of emergency medical supplies and equipment that donate or sell their product from civil liability. Entities would be exempt from civil liability only if the product were sold or donated at a price that does not exceed the cost of production.
2. Create liability protections for health care professionals acting to address the COVID-19 pandemic during the public health emergency. To be immune from liability, actions must be in good faith or be consistent with state or federal guidance related to the public health emergency.

WCJC worked with the Legislature on including protections for healthcare providers and their employees. However, WCJC opposed the unnecessary limitations on the civil liability protections for manufacturers of PPE and COVID-19 treatment equipment. WCJC also encouraged the Legislature to enact civil liability protections for employers keeping their workers and workplaces safe and for persons rendering aid. Those provisions were not included in the final legislation. (WCJC memo on liability protections in Wisconsin COVID-19 legislation.)

WCJC is continuing to work with the Legislature, the Governor, and the Wisconsin business community on enacting these further liability protections for employers and manufacturers as the state begins to look at reopening the economy.

When the state Assembly’s legislative session wrapped up in February, WCJC closely monitored legislation to address PFAS in Wisconsin. With the Legislature’s attention on COVID-19 for now, PFAS bills have moved out of focus but could be revived when the state Senate reconvenes to take up the remaining bills from the regular legislative session. Meanwhile, the Wisconsin Department of Natural Resources (DNR) is continuing to work on rulemaking to set standards for PFAS in surface water, groundwater, and drinking water. 

PFAS (per- and polyfluoroalkyl substances) are man-made chemicals found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. The most extensively studied PFAS compounds are PFOA and PFOS, which have been phased out of domestic manufacturing over the past decade. Competing studies debate whether or not these chemicals have negative health effects and, if they do, at what level they are harmful.

  

Wisconsin Legislation

In the last Assembly regular floor period of the 2019-20 legislative session in February, the Assembly passed PFAS provisions as an amendment tacked on to SB 559 (an unrelated bill). The Assembly passed on a party-line vote language that:

• Directs the University of Wisconsin System to perform a study and report to the Legislature on PFAS effects in the human body, drinking water and groundwater.
• Directs DNR to test private wells and municipal water systems for PFOA and PFOS in places around the state that have detected PFAS, investigate PFAS in those areas, and provide clean drinking water to residents affected.
• Directs DNR to recoup payments for testing, investigation, and clean water from responsible parties who have used firefighting foam containing PFAS.
• Directs DNR to set lab certification standards.

The legislation now must be approved by the Senate, which was scheduled to meet in March but has postponed its final regular session date due to COVID-19.

The Assembly did not take up alternative legislation (AB 843 & AB 842) that would have given DNR extremely broad authority to establish and enforce various PFAS standards. A coalition of industry groups opposed those bills.

Other legislation on PFAS introduced this session included:

AB 323/SB 310 would prohibit the use of firefighting foams that contain intentionally added PFAS in training, unless the testing facility has appropriate containment and treatment measures. – Signed into law on Feb. 5 as Act 101

SB 774 & SB 775/AB 922 & AB 921, authored by Sen. Rob Cowles (R-Green Bay) and Rep. Joel Kitchens (R-Sturgeon Bay), would allow DNR to regulate PFAS and provide funding for residents and municipalities in targeted “PFAS management zones” that have water testing above 70 ppt. This bill would not set statewide standards for PFAS chemicals. – Senate Committee on Natural Resources & Energy held a public hearing on the bill on Feb. 7 but did not vote on the bill. With the Assembly adjourned for the regular session, the bill is likely dead.

SB 717/AB 792 provides $250,000 for the Department of Trade, Agriculture & Consumer Protection (DATCP) to administer, with DNR, a voluntary program to collect and store or dispose of firefighting foam containing PFAS. This bill was introduced by the Speaker’s Task Force on Water Quality. – Passed the Assembly unanimously on Feb. 18. Senate Committee on Natural Resources & Energy voted unanimously to recommend passage on Feb. 5, but it is unclear if the Senate will take up the bill in its final floor session.

SB 302/AB 321, also known as the “CLEAR Act,” would circumvent current rulemaking processes and give DNR broad, unprecedented authority to regulate PFAS chemicals. – No action.

AB 952 would require DNR to determine whether a safer alternative exists for PFAS in food packaging. If DNR determines there is a safer alternative, no person can manufacture, sell or distribute food packaging containing PFAS. – No action.

 

DNR Rulemaking

The DNR Board voted on Jan. 22 to approve three scope statements under which DNR can regulate PFAS chemicals. (Read about the scope statements here.) Industry groups including WCJC had asked DNR to narrow the scope statements to regulate just PFOA and PFOS chemicals, but the Board-approved scope statements will still give DNR the ability to promulgate regulations on any chemicals in the broad “PFAS” class. Approval of the scope statements allows DNR to move forward with the rulemaking process.

DNR held its first Stakeholder Group meeting on all three proposed rules on Feb. 6. At the meeting, DNR gave an overview of the three scope statements and took public comments. At the next stakeholder meeting, held remotely via Zoom on March 23, DNR gave an update on the federal Environmental Protection Agency (EPA) process for setting standards for PFAS and DNR’s own timeline for setting state standards. DNR estimates that the formal comment period on the rules will take place in 2021 and rules will be finalized in 2022. DNR, along with the state Department of Health Services, also discussed their rationale for recommending a 20 ppt enforcement standard and 2 ppt preventive action limit for PFOA and PFOS combined. The recommended limits would be some of the lowest in the world.

DNR will continue to hold stakeholder meetings for each rule (surface water, groundwater, and drinking water) while drafting economic impact analyses. Under Wisconsin’s rulemaking statutes, DNR cannot continue rulemaking on a proposed rule with an economic impact analysis over $10 million without legislative approval. When economic impacts and rule text are finalized, DNR must hold a public hearing before sending the rules to the governor and legislature for approval.

WCJC is monitoring the rulemaking process to ensure the standards set are not overly burdensome as to cause unnecessary compliance costs and liability for Wisconsin businesses.

 

WisPAC State Agency Task Force

In accordance with Executive Order 40, issued by Gov. Tony Evers in August 2019, Wisconsin state agencies have convened the Wisconsin PFAS Action Council (WisPAC). The executive order directs the council to develop an action plan to address PFAS, due to the governor and legislature by July 1.

WisPAC has also convened two sub-advisory groups:

1. Local Government group headed by
   -Lawrie Kobza, who represents Municipal Environmental Group (MEG) – Water Division.
   -Paul Kent, who represents MEG – Wastewater Division.
   -John Dickerson, Department of Revenue Division Administrator for State & Local Finance
2. Citizens group, which includes industry and stakeholder groups, headed by
   -Lynn Morgan, who represents Waste Management
   -Ned Witte, an attorney from Milwaukee who has worked with DNR in their Brownfield Study Group and represents municipalities in environmental cleanup cases
   -A representative from the Department of Health Services

The sub-advisory groups have met twice so far to take recommendations from the public on what actions they will recommend for the WisPAC action plan. Ideas for the action plan will ultimately be categorized into four areas:

1. Preventing future discharges
2. Minimizing current exposure
3. Addressing legacy exposure
4. Education

Ideas discussed in the sub-groups so far have included PFAS bans, labeling requirements for products containing PFAS, risk communication and education to the public, developing best practices for water utilities, identifying responsible parties, and providing funding for cleanup by initiating investigations and settlements with industry using PFAS products.

The full WisPAC committee of state agency representatives met in January and February, where the leaders of the sub-advisory groups briefed WisPAC on ideas they heard in their listening sessions. Agency members of WisPAC then listed their own ideas for recommendations to potentially be included in the Action Plan due in July, such as finding funding mechanisms, increasing available testing and data, educating municipal water utilities and the public, prioritizing contamination areas of concern, incentivizing private businesses to clean up PFAS sites, setting strict PFAS standards, and evaluating a potential ban on PFAS products.

The remaining March and April meetings of the local government and citizens sub-advisory groups and the full WisPAC have been postponed due to COVID-19. It is not clear yet how the public health emergency will affect WisPAC’s July 1 deadline to get the action plan to the governor.

 

EPA Action

EPA announced at the end of February it will regulate PFAS. The decision to regulate is the beginning of a multiple-year period for EPA to determine and finalize a maximum contaminant level for PFAS in drinking water. EPA proposed regulatory determinations for both PFOA and PFOS.

EPA also recently issued a proposed rule that would exclude manufacturers of PFAS from providing proof of financial responsibility under the federal Superfund cleanup law.

Earlier this year, EPA added 160 PFAS chemicals to the Toxic Release Inventory (TRI). The TRI is a list of chemicals that EPA requires industry to gather data and report on. The new PFAS chemicals, including PFOA and PFOS, have been added to the list effective Jan. 1. The list was added to the TRI following the enactment of the 2020 National Defense Authorization Act (NDAA) in December.

While rulemaking is ongoing, EPA has issued a nonenforceable health advisory standard of 70 parts per trillion.

 

Read more about PFAS regulation in Wisconsin.

 

A proposal is currently circulating in the Wisconsin Legislature that would restore a private individual’s ability to bring a qui tam claim on behalf of the government against a person who makes a false claim for Medicaid. WCJC helped repeal Wisconsin’s previous qui tam law in 2015 and will work hard to ensure that it is not enacted back into law.

 

Background on Qui Tam

Qui tam is a Latin term describing a legal action to collect a penalty through supplied information from the public. Under this legal doctrine, a private party called a “relator” may bring a whistleblower lawsuit against a party on the government’s behalf. The relator must first present the information to the government, which can decide to either pursue the case, or deny involvement and allow the plaintiff to bring the case on behalf of the state using a private plaintiff attorney.

In 2007, the Wisconsin Legislature enacted the previous qui tam law. In 2015, the law was repealed by the Legislature during the budget bill process.

 

Legislative Proposal

Rep. Lisa Subeck (D-Madison) is currently circulating a new proposal (LRB 957) to reinstate the previous qui tam law. The bill would allow private individuals to bring claims on their own behalf and on behalf of the state against persons making false claims for Medical Assistance. Under the bill, plaintiffs and their attorneys could seek up to 30 percent of all of the damages, along with attorney’s fees and costs.

There is little evidence qui tam laws accomplish the ostensible goal of detecting and recovering damages for Medicaid fraud. Instead, according to, the U.S. Chamber Institute for Legal Reform, in many instances the states with qui tam statutes may actually recover less from the average Medicaid fraud settlement than those states without, due to the state’s obligation to pay out a share of the settlement to the private party.

Restoring qui tam lawsuits in Wisconsin would simply provide an incentive for plaintiff attorneys to file costly lawsuits against medical providers, pharmaceutical companies, and any other business contracting with the state.

It’s also important to note that Wisconsin already has a law – Wis. Stat. § 49.49 – that grants the attorney general the authority to prosecute Medicaid fraud and recover damages on behalf of the state. All damages recovered under this law go to the State of Wisconsin and need not be paid out to a private party or plaintiff attorneys.

Earlier this session, Gov. Tony Evers proposed in his state budget recommendations reinstating the qui tam law, not just for alleged Medicaid fraud, but for all state agencies. WCJC actively lobbied against the qui tam provision and were successful in convincing the Joint Finance Committee to remove the provision. WCJC met with key committee members and submitted a memo explaining why the law is unnecessary and would only benefit plaintiff attorneys.

WCJC plans to similarly oppose the newly circulated bill.