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Mar. 3, 2006
There is the
typical flurry of activity as the Legislature heads into the
homestretch of the 2005-06 Session. This issue of
Tidbits is
organized to report selected bills that have passed both Houses of
the Wisconsin Legislature and await action by the Governor, as
well as bills that have passed one House and are likely to receive
favorable consideration by the second House before conclusion of
the regular session.
The Legislature has also
been active on the proposed constitutional amendment front. A proposal to
restrict the Wisconsin Governor’s item veto authority has passed both the
Assembly and Senate under “first consideration,” meaning that an identical
resolution will have to be adopted by the 2007 Legislature before being
submitted to the people for approval or disapproval via referendum.
A proposal to define
marriage as between a man and a woman has passed two successive sessions and
will be on the ballot for approval or disapproval on November 7 of this
year.
Another proposed
constitutional amendment intended to control the growth of government
spending (referred to as the Taxpayer Protection Act) is expected to be
acted on under first consideration later this month. (See below.)
As previously reported, the
Legislature is expected to conclude the bulk of its 2005-06 session work by
the close of day next Thursday, March 9. The last week in April and the
first week in May are listed as “regular session” weeks and are available
for action on additional high priority items and/or veto override votes.
Next week we will report on
bills that have passed both Houses and the presumed fate of the bills that
have not received final action.
Policy Developments
Medical
Malpractice Cap Revisited
For the second time during the 2005-06 legislative session,
members of the Wisconsin Legislature seem poised to pass and send
to the Governor a bill that would re-establish a cap on the award
of noneconomic damages in medical malpractice cases.
Legislative action came
about as a result of the Wisconsin Supreme Court’s decision in the Ferdon
case issued last July, which struck down the cap enacted by the 1995
Wisconsin Legislature. Following that decision, the Assembly Speaker created
a task force of legislators and public members to solicit information,
review data, and assess the impact of caps in Wisconsin and around the
country.
The task force submitted
its findings and recommendations, and the Legislature proceeded to pass a
bill,
AB-766, in response to those findings and recommendations. Governor
Doyle vetoed AB-766, citing his belief that the bill did not adequately
respond to the Supreme Court’s decision that the 1995 adopted caps failed
the Court’s constitutional test.
On Thursday the Wisconsin
Assembly, on a bi-partisan vote of
74-22, 2 paired, passed
AB-1073, which establishes a cap of $750,000 on the award of noneconomic
damages in medical malpractice cases. AB-1073 also includes an expanded
“purpose” clause to memorialize the Legislature’s “rational basis” for
enacting the cap. The bill is expected to be concurred in by the Senate next
week.
The Governor has not
publicly stated what action he intends to take when the bill hits his desk.
Conventional wisdom has been, however that the bill needs to be “clean” to
have any chance of gaining the Governor’s signature. That means that the
bill could not contain other items such as limits on plaintiff lawyer
attorney fees. The Assembly did, however, pass separate legislation,
AB-1074, to limit plaintiff lawyer fees in medical malpractice cases, as
well as
AB-1072, relating to introduction and potential subtraction of
collateral source payments in medical malpractice cases.
More Litigation Reform -
Obesity
Inspired by lawsuits commenced in other parts of the country and open
discussion among plaintiff lawyers, the Wisconsin Legislature, for the
second session in a row, has passed (24-9 in the Senate and 63-33, 2 paired
in the Assembly) legislation,
SB-161, to provide certain immunities for
claims brought to recover damages for illnesses or injuries that were
brought on or caused by weight gain or obesity - often referred to as the
“McDonald’s cases.”
The Wisconsin Legislature
passed similar legislation last session, but the measure was vetoed by
Governor Doyle. A spokesperson for the Administration has recently stated
that the Governor will likely veto SB-161 as well.
And More - Punitive Damages
The first of the three “infamous” Wisconsin Supreme Court civil justice
rulings of last year came one year ago, March 2005, and related to the
standards for the award of punitive damages.
The Supreme Court, in the
high-profile Mitsubishi case, interpreted another 1995 adopted
statute in a manner to allow the award of punitive damages based on
standards that many proponents of the earlier legislation believe are much
weaker than that intended by the Wisconsin Legislature. There were no
constitutional issues, only the Court’s citing, after 10 years, of what it
believed the Legislature meant by the language it had adopted.
Each house has,
respectively, passed bills (AB-843
&
SB-447) that are identical in all but one provision, to once again
heighten the standard for the award of punitive damages. Senate Bill 447 is
on the Assembly calendar of Tuesday, March 7. On Wednesday, the Senate
Judiciary Committee recommended concurrence in AB-843, but the Senate
calendar for next week has not as yet been established. There has been no
statement from the Governor’s office, but speculation again points to a
veto.
Taxpayer Protection Act
The proposed constitutional amendment to control the growth of government
spending had its first public hearing in Pewaukee on Wednesday. The proposal
is embodied in companion Joint Resolutions,
SJR-63 and
AJR-77.
The proposal has very vocal
and staunch proponents and opponents, but also others who are carefully
examining the various provisions to determine potential impact on legitimate
economic development and general development activities. Conventional wisdom
is that some version will pass as “first consideration” this year. (The
Constitution cannot be amended in Wisconsin unless the identical resolution
passes two - “first and second consideration” - consecutive sessions and is
approved by the people via referendum.)
The proposal is likely to
undergo some change before going to the full Legislature, which is likely to
occur during an extraordinary session later this month and after most, if
not all, the regular floor action is completed.
Recent Legislative Activity
The following bills have
passed both Houses and are available for action by the Governor:
Senate
-
SB-164: Notice regarding unauthorized acquisition of personal
information.
-
SB-448: Contractor's notices, claims against certain contractors and
suppliers of dwellings.
-
SB-578: Confidentiality of health care review records.
Assembly
-
AB-208: Rural enterprise development zones.
-
AB-290: Prohibiting the required implanting of a microchip in an
individual
-
AB-298: Tourism promotion and development under the room tax.
-
AB-387: Eligibility of a person enrolled in a program that confers a
master’s degree in nursing for a loan under the Nursing Student Loan
Program.
-
AB-597: Remedies in certain actions concerning building code or zoning
ordinance violations.
-
AB-620: Notice to persons affected by zoning actions and comprehensive
plans that change the allowable use of their property.
-
AB-926: Group health plans offered by co-ops.
-
AB-981. Funding changes for Medical Assistance. Passed, 94-1.
-
AB-986. Offenses against financial institutions. Passed, voice vote.
-
AJR-68: Prohibiting partial vetoes of parts of bill sections (first
consideration) and
SJR-33 (first consideration) have also passed both Houses. (No action
by the Governor is required.)
The following passed have
passed one (the first) House:
Senate
-
SB-103: Income and franchise tax credit for research and research
facilities. Passed
21-11.
-
SB-136: Income and franchise tax credits for businesses located in an
airport development zone. Passed
18-15.
-
SB-183: Grants to certain organizations that provide support to a
manufacturing extension center. Passed
33-0.
-
SB-420: Definition of a group health benefit plan.
-
SB-425: Limitations on the authority of the Department of Justice and
the Attorney General regarding public nuisance actions. Passed the Senate
19-14.
-
SB-444: Duties of a real property lister.
-
SB-459: Relates to programs that promote energy efficiency and energy
that is derived from renewable resources. It is based generally upon
recommendations contained in the Final Report of the Governor’s Task Force
on Energy Efficiency and Renewables, October 2004. Passed the Senate 32-1;
See the
Legislative Council Amendment Memo.
-
SB-465: Postdated checks and checks given for past consideration.
Passed
19-4.
-
SB-546: Identification and cleanup of properties that are
environmentally contaminated. Passed
33-0.
-
SB-571: Offenses against financial institutions, community currency
exchanges, and providing penalties. Laid on the table Feb. 28.
-
SB-602: Creating a development zone credit for the license fees paid
by certain insurers.
-
SB-617: Rules relating to defined network plans and preferred provider
plans.
Assembly
-
AB-713: Subjecting a county development plan to town board approval.
-
AB-890: Ddmitting prior testimony of a felony victim at a probation,
parole, or extended supervision revocation hearing.
-
AB-980: Continuing education and certification requirements for
building contractors and certification of building inspectors.
-
AB-981. Funding changes for Medical Assistance. Passed, 94-1.
-
AB-986. Offenses against financial institutions. Passed, voice vote.
-
AB-1057. Changes affecting Milwaukee Parental Choice Program and SAGE
Program. Am .1 tabled, 60-37. Am. 2 tabled, 59-38. Am. 3 tabled, 60-37.
Am. 4, tabled, 60-37.
-
Not Referred to Education
Committee, 36-61. Am. 5 tabled, 60-37. Am. 6 tabled, 64-32. Am. 7
tabled, 65-31. Passed, 62-37.
-
AB-1071. Time limit for a person under the age of 18 to bring an
action against a health care provider. Passed, 59-37.
-
AB-1072. Awards to persons suffering damages as the result of medical
malpractice; evidence of compensation. Passed, 59-36.
-
AB-1074. Recovery of attorney fees in medical malpractice cases.
Passed, 55-41.
-
AJR-68:
Prohibiting partial vetoes of parts of bill sections (first
consideration).
-
and SJR-33 (first
consideration) have also passed both Houses.
Assembly Sets Calendar for
Tuesday, March 7
The Assembly calendar for next Tuesday includes Senate Bills 103, 459 and
602 (all referenced above) as well as the following:
AB-958: Civil liability exemption for assistance provided as the
result of an emergency.
AB-973: Expands purposes for which a town may create a tax incremental
financing district.
AB-1008: Authorizes City of
Monroe
to make changes in TIF districts.
AB-1015: Authorizes city or village to make changes in TIF districts.
AB-1024: Damages to rental vehicles.
AB-1077: Time period during which impact fees must be used; refunding
of impact fees.
SB-450: Construction liens.
SB-501: Damages for frivolous claims.
Ethanol Prices Heading
Through the Roof
Ethanol is already more expensive than conventional gasoline, but a recent
report by a federal agency says prices will go higher. Because of bans on
the fuel additive MTBE, and other market forces on the East Coast and in
Texas, the ethanol shortage is expected to drive prices even higher in the
months ahead.
A
February 22, 2006 report from the Energy Information Administration (EIA)
at the federal Department of Energy found that the worsening ethanol
shortage will result in “supply dislocations and subsequent price
volatility.”
The higher ethanol prices
interject a new angle in the debate over
AB-15, legislation that would mandate ethanol across Wisconsin. In a
Milwaukee Journal Sentinel guest editorial,
WMC’s Scott Manley discusses the issue.
JCRAR Acts to Suspend
Portions of New Ins 9 Administrative Rules
On Wednesday, March1, the
Joint Committee for Review of Administrative Rules (JCRAR) held a public
hearing and took action to suspend portions of
Ins 9 relating to the regulation of defined network and preferred
provider insurance plans. The rule suspensions pertain to new rules recently
adopted by OCI, which went into effect on March 1.
Portions of the rule came
under fire by some members of the insurance industry, the hospital
association and companies dealing with limited scope plans. Legislative
concerns were also raised as to whether OCI had adequate statutory authority
to impose some of the new regulations by administrative rule. The JCRAR
voted to suspend the following provisions:
-
Suspend Ins 9.01 (10m)
and related references to take limited scope dental and vision plans out
of the rule.
-
Suspend Ins 9.32 (2) (c)
and related references to eliminate the rule requirement that insurance
contracts with participating providers (i.e. hospitals) include a
provision that requires the provider to inform patients whether certain
services will be performed by a participating or nonparticipating
provider.
-
Suspend Ins 9.25 (4) to
delete a provision that would give the Commissioner of Insurance authority
to regulate a preferred provider plan (PPP) like an HMO if the
Commissioner determined the PPP was routinely using preauthorization for
denying access to services of nonparticipating providers.
-
Suspend portions of Ins
9.32 (2) (a) relating to access standards. The portion suspended pertains
to OCI regulation of a PPP with respect to the hours of operation, waiting
times for appointments, and after hour care of the plan’s participating
providers.
-
Suspend Ins 9.32 (2) (f)
relating to the requirement that PPP’s pay for emergency services
performed by a nonparticipating provider as though the services were
performed by a participating provider.
As a result of Wednesday’s
action, the JCRAR now submits a bill, within 30 days, to codify its
suspensions. Since it is after February 1st of an even-numbered
year, the bill does not come up until it is re-introduced on the first day
of the next session of the Legislature, in January of 2007. In the interim,
the suspended portions of the rule are not in effect and may not be enforced
by OCI.
Separate Bills Regarding Ins 9 (AB-1052 & SB-617)
In separate but related action, companion bills (AB-1052
and SB-617)
dealing with the regulation of preferred provider plans, were respectively
scheduled for a floor vote in the first house on Thursday, March 2. SB-617
was passed as amended (SA 1) on a partisan 19-13 vote and messaged to the
Assembly.
AB-1052 was not taken up by
the Assembly on March 2, and both bills are on the calendar to be taken up
on March 7. These bills have substantial effect on OCI rulemaking under Ins
9, and include provisions that authorize and limit OCI’s rulemaking
authority. However, they are not the same bills that must be introduced by
JCRAR under the suspension action reported above.
The Governor has not stated
his position publicly, but a veto is expected should either companion bill
pass both houses. Under that scenario, the suspension actions taken by JCRAR
remain unaffected and those ongoing Ins 9 issues will be taken up again when
the Legislature convenes in January of 2007.
Legislators Create
Healthcare Committee
A five-member committee has been charged with studying the rising costs of
health care in Wisconsin. The Senate Committee on Health Care Reform will focus on
long-term care for
Wisconsin’s
aging population as well as the rising costs of health care. Hearings will
be held around the state, with the first to be in
Milwaukee.
A final report will be released no later than May 31, 2006. Sens. Roessler
and Darling will co-chair the committee.
Nuclear Bill Introduced -
Committee Hearing
Legislation introduced last month would allow construction of new nuclear
power plants in Wisconsin. A public hearing on the legislation (AB-1053)
ending Wisconsin’s moratorium on the construction and expansion of nuclear
power plants was held on March 1st.
Immigrant ID Legislation
Advances
Wisconsin State Senate approved
Assembly Bill 69 that would make Wisconsin the 42nd state to adopt a
requirement that an individual show proof of legal presence in the United
States in order to obtain a driver’s license or State ID Card. AB-69 passed
the Senate in a bipartisan vote of 26-7.
Wisconsin
is currently one of only nine states without a requirement that a person
must be lawfully in our country in order to get a driver’s license or State
ID Card. If the bill becomes law, applicants would have to show proof of
residence and a date when their legal alien status expires. The date would
be printed on the person's driver's license.
Study:
Wisconsin
Economy will Neither Boom nor Bust
Wisconsin’s economy
continues to improve according to a
recently released study prepared by the Wisconsin Department of Revenue.
Personal income growth will be averaging three percent per year over the
next five years. Over the same time period,
Wisconsin per capita incomes are expected to remain above 98
percent of the U.S.
average.
Wisconsin’s
employment growth is expected to average 1.1 percent on an annual basis for
the next three years. Wisconsin’s employment is expected to grow at a 0.6
percent annual rate in the first quarter of 2006, and gradually accelerate
to 1.1 percent by the fourth quarter. The unemployment rate in Wisconsin is
expected to slightly decrease over the next five years, while the national
unemployment rate is expected to rise.
DNR Provides Brownfield
Grants
Gov. Jim Doyle
recently announced grants totaling
$1.7 million to start the clean-up process of contaminated, abandoned, or
underused properties in various communities.
The Brownfields Site
Assessment Grants (SAG) provided through the Department of Natural
Resources, give local governments seed money for demolition, environmental
assessments, and removal of abandoned tanks and containers.
Political News
State's
unemployment rate for January hits 5-year low: Milwaukee Journal
Sentinel, Mar. 3, 2006.
Boom
expected in mining equipment: Milwaukee Journal Sentinel, Mar. 3,
2006.
Voucher
deal passes: Milwaukee Journal Sentinel, Mar. 3, 2006.
Educators
resist revenue curbs: Milwaukee Journal Sentinel, Mar. 2, 2006.
Assembly passes new malpractice damage cap: Stevens Point Journal,
Mar. 2, 2006.
Dems not happy with current TABOR amendment: Ashland Daily Press,
Mar. 2, 2006.
Bird flu's potential dims 9/11, health expert says: Madison Capital
Times, Mar. 2, 2006.
State Senate OKs nursing home reimbursement hike: Ashland Daily
Press, Mar. 2, 2006.
Don't block
teens' access to birth control (opinion): Milwaukee Journal
Sentinel, Mar. 2, 2006.
Ethanol
mandate (opinion): Milwaukee Journal Sentinel, Mar. 1, 2006.
Economic health varies by measurement: Stevens Point Journal, Mar.
1, 2006.
State will sell itself at big bio-tech show: Wisconsin State
Journal, Feb. 28, 2006.
State audit
finds 40 felons on UW System payroll: Milwaukee Journal Sentinel,
Feb. 28, 2006.
Amnesty report blasts shackling female inmates: Appleton
Post-Crescent, Feb. 28, 2006.
Report:Inmates abused in state: Ashland Daily Press, Mar. 1, 2006.
Report: Smoking kills 22 a day in state: Manitowoc Herald Times,
Feb. 28, 2006.
State ranks 23rd in preventing unintended pregnancy, study says:
Madison Capital Times, Feb. 28, 2006.
Australian company buys interest in big Iowa ethanol plant: Des
Moines Register, Feb. 22, 2006.
No Easing US Ethanol Import Duties as Demand Soars: Planet Ark, Jan.
2006.
Upcoming Fundraisers
Mar. 5
-
U.S. Senator Russ Feingold (D),
Madison
-
U.S. Senator Russ Feingold, Milwaukee
Mar. 6
Mar. 7
Mar. 9
-
Van Wanggaard, 62nd AD candidate,
Racine
-
AG Peg Lautenschlager (D), Madison
Mar. 10
Mar. 11
Mar. 13
-
John Gard (R) 8th congressional
candidate, Green Bay
-
Sen. Roger Breske (D-Eland),
Birnamwood
Mar. 14
-
Sen. Alberta Darling (R-River Hills),
Madison
-
Sen. Ron Brown (R-Eau Claire), Black
River Falls
-
AG Peg Lautenschlager (D), Fond du Lac
Mar. 15
-
Bill McReynolds (R), Madison
-
Governor Jim Doyle, Madison,
-
Rep. John Gard (R-Peshtigo),
Washington, DC
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