Chapter Ins 17

Ins 17.275   Claims information; confidentiality.

Ins 17.28   Health care provider fees.

Ins 17.285   Peer review council.

Ins 17.29   Servicing agent.

Ins 17.30   Peer review council assessments.

Ins 17.35   Primary coverage; requirements; permissible exclusions; deductibles.

Ins 17.40   Notice to fund of filing of action outside this state.

Ins 17.50   Self-insured plans for health care providers.

Ch. Ins 17 Note Note: Corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, June, 1997, No. 498.

Ins 17.001 Ins 17.001 Definitions. In this chapter:

Ins 17.001(1) (1) “Board” means the board of governors established under s. 619.04 (3), Stats.

Ins 17.001(1m) (1m) “Commissioner” means the commissioner of insurance or deputy commissioner acting under s. 601.11 (1) (b), Stats.

Ins 17.001(2) (2) “Fund” means the patients compensation fund established under s. 655.27 (1), Stats.

Ins 17.001(3) (3) “Hearing” means a contested case, as defined in s. 227.01 (3), Stats.

Ins 17.001(4) (4) “Plan” means the Wisconsin health care liability insurance plan, a nonprofit, unincorporated association established under s. 619.01 (1) (a), Stats.

Ins 17.001 History History: Cr. Register, July, 1979, No. 283, eff. 8-1-79; am. (intro.) to (4), cr. (1m), Register, June, 1990, No. 414, eff. 7-1-90; r. and recr. (3), Register, March, 1996, No. 483, eff. 4-1-96.

Ins 17.005 Ins 17.005 Purpose. This chapter implements ss. 619.01 and 619.04, Stats., and ch. 655, Stats.

Ins 17.005 History History: Cr. Register, June, 1990, No. 414, eff. 7-1-90.

Ins 17.01 Ins 17.01 Payment of mediation fund fees.

Ins 17.01(1) (1) Purpose. This section implements s. 655.61, Stats., relating to the payment of mediation fund fees.

Ins 17.01(2) (2) Fee.

Ins 17.01(2)(a) (a) Each physician subject to ch. 655, Stats., except a resident, and each hospital subject to ch. 655, Stats., shall pay to the commissioner an annual fee to finance the mediation system created by s. 655.42, Stats.

Ins 17.01(2)(b) (b) The fund shall bill a physician or hospital subject to this section under s. Ins 17.28 (4). The entire annual fee under this section is due and payable 30 days after the fund mails the bill.

Ins 17.01(2)(d) (d) The fund shall notify the medical examining board of each physician who has not paid the fee as required under par. (b).

Ins 17.01(2)(e) (e) The fund shall notify the department of health services of each hospital which has not paid the fee as required under par. (b).

Ins 17.01(2)(f) (f) Fees collected under this section are not refundable except to correct an administrative billing error.

Ins 17.01(3) (3) Fee schedule. The following fee schedule shall be effective July 1, 2013:

Ins 17.01(3)(a) (a) For physicians — $0.

Ins 17.01(3)(b) (b) For hospitals, per occupied bed — $0.

Ins 17.01 History History: Cr. Register, August, 1978, No. 272, eff. 9-1-78; emerg. r. and recr. eff. 7-2-86; r. and recr., Register, September, 1986, No. 369, eff. 10-1-86; cr. (2) (f), am. (3), Register, June, 1987, No. 378, eff. 7-1-87; am. (1), (2) (a), (d) and (e), (3), r. and recr. (2) (b), r. (2) (c), Register, June, 1990, No. 414, eff. 7-1-90; emerg. am. (3), eff. 7-1-91; am. (3) (intro.), Register, July, 1991, No. 427, eff. 8-1-91; am. (3) (a) and (b), Register, October, 1991, No. 430, eff. 11-1-91; emerg. am. (3), eff. 4-28-92; am. (3), Register, July, 1992, No. 439, eff. 8-1-92; emerg. am. (1), (3) (intro.), (a), eff. 7-22-93; am. (1) (3) (intro.), (a), Register, September, 1993, No. 453, eff. 10-1-93; am. (3) (intro.), Register, June, 1994, No. 462, eff. 7-1-94; emerg. am. (3) (intro.) and (a), eff. 6-14-95; am. (3) (intro.) and (a), Register, December, 1995, No. 480, eff. 1-1-96; emerg. am. (3) (intro.), eff. 5-28-96; am. (3) (intro.), Register, September, 1996, No. 489, eff. 10-1-96; emerg. am. (3) (intro.), eff. 8-12-97; am. (3) (intro.), Register, November, 1997, No. 503, eff. 12-1-97; emerg. am. (intro.), (a) and (b), eff. 6-1-98; emerg. am. (3), eff. 6-1-98; emerg. am. (3), eff. 6-19-98; am. (3), Register, August, 1998, No. 512, eff. 9-1-98; emerg. am. (3) (intro.), eff. 7-1-99; am. (3) (intro.), Register, September, 1999, No. 535, eff. 10-1-99; emerg. am. (3), eff. 7-1-00; am. (3), Register, August, 2000, No. 536, eff. 9-1-00; emerg. am. (3), eff. 7-1-01; CR 01-035: am. (3) (intro.), Register September 2001 No. 549, eff. 10-1-01; emerg. am. (3), eff. 7-1-02; CR 02-035: am. (3), Register September 2002 No. 561, eff. 10-1-02; CR 03-039: am. (3) Register October 2003 No. 574, eff. 11-1-03; CR 04-032: am. (3) Register January 2005 No. 589, eff. 2-1-05; emerg. am. (3), eff. 7-1-05; CR 05-028: am. (3) Register October 2005 No. 598, eff. 11-1-05; CR 06-002: am. (3) Register June 2006 No. 606, eff. 7-1-06; CR 07-002: am. (3), Register June 2007 No. 618, eff. 7-1-07; CR 08-006: am. (3) Register June 2008 No. 630, eff. 7-1-08; CR 09-004: am. (3) Register June 2009 No. 642, eff. 7-1-09; correction in (2) (e) made under s. 13.92 (4) (b) 6., Stats., Register June 2009 No. 642; EmR1020: emerg. am. (3), eff. 6-15-10; CR 10-065: am. (3) Register November 2010 No. 659, eff. 12-1-10; EmR1108: emerg. am. (3), eff. 6-10-11; CR 11-015: am. (3) Register August 2011 No. 668, eff. 9-1-11; EmR1306: emerg. am. (3), eff. 6-3-13; CR 13-044: am. (3) Register June 2014 No. 702, eff. 7-1-14.

Ins 17.24 Ins 17.24 Review of classification.

Ins 17.24(1) (1) Any person insured by the plan or covered by the fund may petition the board for a review of its classification by the plan or fund. The petition shall state the basis for the petitioner’s belief that its classification is incorrect. The board shall refer a petition for review to either of the following:

Ins 17.24(1)(a) (a) If the petitioner is a hospital or a nursing home or other entity affiliated with a hospital, to a committee appointed by the commissioner consisting of 2 representatives of hospitals, other than the petitioner’s hospital, and one other person who is knowledgeable about insurance classification.

Ins 17.24(1)(b) (b) If the petitioner is any person other than a person specified in par. (a), to a committee appointed by the commissioner consisting of 2 physicians who are not directly or indirectly affiliated or associated with the petitioner and one other person who is knowledgeable about insurance classification.

Ins 17.24(2) (2) The plan, the fund or both shall provide the committee with any information needed to review the classification.

Ins 17.24(2m) (2m) The committee shall review the classification and report its recommendation to the petitioner and the board within 5 days after completing the review.

Ins 17.24(3) (3) Any person that is not satisfied with the recommendation of the committee may petition for a hearing under ch. 227, Stats., and ch. Ins 5 within 30 days after the date of receipt of written notice of the committee’s recommendation.

Ins 17.24(4) (4) At the hearing held pursuant to a petition under sub. (3), the committee report shall be considered and the members of the committee may appear and be heard.

Ins 17.24 History History: Cr. Register, July, 1979, No. 283, eff. 8-1-79; r. and recr. (1) and (2), cr. (2m), am. (3) and (4), Register, June, 1990, No. 414, eff. 7-1-90.

Ins 17.25 Ins 17.25 Wisconsin health care liability insurance plan.

Ins 17.25(1) (1) Findings.

Ins 17.25(1)(a) (a) Legislation has been enacted authorizing the commissioner to promulgate a plan to provide health care liability insurance and liability coverage normally incidental to health care liability insurance for risks in this state which are equitably entitled to but otherwise unable to obtain such coverage, or to call upon the insurance industry to prepare plans for the commissioner’s approval.

Ins 17.25(1)(b) (b) Health care liability insurance, liability coverage normally incidental to health care liability insurance or both are not readily available in the voluntary market for the persons specified in sub. (5) (a).

Ins 17.25(1)(c) (c) A plan for providing health care liability insurance and liability coverage normally incidental to health care liability insurance should be enacted pursuant to ch. 619, Stats.

Ins 17.25(2) (2) Purpose. This section implements ss. 619.01 and 619.04, Stats., by establishing procedures and requirements for a mandatory risk sharing plan to provide health care liability insurance coverage and liability coverage normally incidental to health care liability insurance on a self-supporting basis for the persons specified in sub. (5) (a) and for their employees acting within the scope of their employment and providing health care services. This section is also intended to encourage improvement in reasonable loss prevention measures and to encourage the maximum use of the voluntary market.

Ins 17.25(3) (3) Coverage; exclusions.

Ins 17.25(3)(a) (a) Each policy of health care liability insurance coverage issued by the plan shall provide occurrence coverage for all of the following:

Ins 17.25(3)(a)1. 1. Providing or failing to provide health care services to a patient.

Ins 17.25(3)(a)2. 2. Peer review, accreditation and similar professional activities in conjunction with and incidental to the provision of health care services, when conducted in good faith by the insured or an employee of the insured.

Ins 17.25(3)(a)3. 3. Utilization review, quality assurance and similar professional activities in conjunction with and incidental to the provision of health care services, when conducted in good faith by the insured or an employee of the insured.

Ins 17.25(3)(b) (b) Each policy issued by the plan shall also provide for supplemental payments in addition to the limits of liability under par. (d), including attorney fees, litigation expenses, costs and interest.

Ins 17.25(3)(c) (c) The health care liability insurance coverage issued by the plan shall exclude coverage for all of the following:

Ins 17.25(3)(c)1. 1. Criminal acts.

Ins 17.25(3)(c)2. 2. Intentional sexual acts and other intentional torts.

Ins 17.25(3)(c)3. 3. Restraint of trade, anti-trust violations and racketeering.

Ins 17.25(3)(c)4. 4. Defamation.

Ins 17.25(3)(c)5. 5. Employment, religious, racial, sexual, age and other unlawful discrimination.

Ins 17.25(3)(c)6. 6. Pollution resulting in injury to a 3rd party.

Ins 17.25(3)(c)7. 7. Acts that occurred before the effective date of the policy of which the insured was aware or should have been aware.

Ins 17.25(3)(c)8. 8. Incidents occurring while and insured’s license to practice is suspended, revoked, surrendered or otherwise terminated.

Ins 17.25(3)(c)9. 9. Criminal and civil fines, forfeitures and other penalties.

Ins 17.25(3)(c)10. 10. Punitive and exemplary damages.

Ins 17.25(3)(c)11. 11. Liability of the insured covered by other insurance, such as worker’s compensation, automobile, fire or general liability.

Ins 17.25(3)(c)12. 12. Liability arising out of the ownership, operation or supervision by the insured of a hospital, nursing home or other health care facility or business enterprise.

Ins 17.25(3)(c)13. 13. Liability of others assumed by the insured under a contract or agreement.

Ins 17.25(3)(d) (d) The maximum limits of liability for coverage under par. (a) are the following:

Ins 17.25(3)(d)1. 1. For all occurrences before July 1, 1987, $200,000 for each occurrence and $600,000 per year for all occurrences in any one policy year.

Ins 17.25(3)(d)2. 2. For occurrences on or after July 1, 1987, and before July 1, 1988, $300,000 for each occurrence and $900,000 for all occurrences in any one policy year.

Ins 17.25(3)(d)3. 3. Except as provided in subds. 4. and 5., for occurrences on or after July 1, 1988, and before July 1, 1997, $400,000 for each occurrence and $1,000,000 for all occurrences in any one policy year.

Ins 17.25(3)(d)4. 4. Except as provided in subd. 5., for occurrences on or after July 1, 1997, $1,000,000 for each occurrence and $3,000,000 for all occurrences in any one policy year.

Ins 17.25(3)(d)5. 5. For podiatrists licensed under ch. 448, Stats., for occurrences on and after November 1, 1989, $1,000,000 for each occurrence and $1,000,000 for all occurrences in any one policy year.

Ins 17.25(3)(e) (e) The plan may also issue liability coverage normally incidental to health care liability insurance including all of the following:

Ins 17.25(3)(e)1. 1. Owners, landlords and tenants liability insurance.

Ins 17.25(3)(e)2. 2. Owners and contractors protective liability insurance.

Ins 17.25(3)(e)3. 3. Completed operations and products liability insurance.

Ins 17.25(3)(e)4. 4. Contractual liability insurance.

Ins 17.25(3)(e)5. 5. Personal injury liability insurance.

Ins 17.25(3)(f) (f) The maximum limits of liability for coverage under par. (e) are $1,000,000 per claim and $3,000,000 aggregate for all claims in any one policy year.

Ins 17.25(5) (5) Eligibility for plan coverage. All of the following are eligible for insurance under the plan:

Ins 17.25(5)(a) (a) A medical or osteopathic physician or podiatrist licensed under ch. 448, Stats.

Ins 17.25(5)(b) (b) A nurse anesthetist or nurse midwife licensed under ch. 441, Stats.

Ins 17.25(5)(c) (c) A nurse practitioner licensed under ch. 441, Stats., who meets at least one of the requirements specified under s. DHS 105.20 (1).

Ins 17.25(5)(d) (d) A partnership comprised of, and organized and operated in this state for the primary purpose of providing the medical services of, physicians, podiatrists, nurse anesthetists, nurse midwives, nurse practitioners or cardiovascular perfusionists.

Ins 17.25(5)(e) (e) A corporation or general partnership organized and operated in this state for the primary purpose of providing the medical services of physicians, podiatrists, nurse anesthetists, nurse midwives, nurse practitioners or cardiovascular perfusionists.

Ins 17.25(5)(f) (f) An operational cooperative sickness care plan organized under ss. 185.981 to 185.985, Stats., which directly provides services through salaried employees in its own facility.

Ins 17.25(5)(g) (g) An accredited teaching facility conducting approved training programs for medical or osteopathic physicians licensed or to be licensed under ch. 448, Stats., or for nurses licensed or to be licensed under ch. 441, Stats.

Ins 17.25(5)(h) (h) A hospital, as defined in s. 50.33 (2) (a) and (c), Stats., but excluding facilities exempted by s. 50.39 (3), Stats., except as provided in par. (k).

Ins 17.25(5)(i) (i) An entity operated in this state that is an affiliate of a hospital and that provides diagnosis or treatment of, or care for, patients of the hospital.