Chapter Ins 17

Ins 17.285(4)(a)1. 1. From any health care provider, patient health care records related to each closed claim subject to review as provided in s. 146.82 (2) (a) 5., Stats.

Ins 17.285(4)(a)2. 2. From the provider’s insurer, relevant factual information about each closed claim subject to review. This subdivision applies only if the provider has complied with the request under sub. (2s) (c).

Ins 17.285(4)(b) (b) A request under par. (a) shall be in writing and shall specify a reasonable time for response. Each person receiving a request shall provide the council with the records and information requested, unless the person no longer maintains or has access to them. If a person is unable to comply with a request, the person shall notify the council in writing of the reason for the inability to comply.

Ins 17.285(4)(c) (c) The council shall notify a provider for whom a determination is made under sub. (3) that, after reviewing the patient health care records, consultants’ opinions and other relevant information submitted by the provider and the provider’s insurer, the council may recommend that a surcharge be imposed on the provider’s plan premium, fund fee or both, and that the surcharge may be reduced or eliminated following a review as provided in this section. The notice shall include a description of the procedures specified in this section and a statement that the provider may submit in writing relevant information about any closed claim involved in the review and a description of mitigating circumstances that may reduce the future risk to the plan, the fund or both.

Ins 17.285(5) (5) Procedure for review.

Ins 17.285(5)(a) (a) The council or a single council member may conduct a preliminary review of the records and information relating to each of a provider’s closed claims. If the council or council member is able to determine, without a consultant, that the provider met the appropriate standard of care with respect to any closed claim, the council shall not refer that closed claim to a consultant and shall not use that closed claim in determining whether to impose a surcharge on that provider.

Ins 17.285(5)(b) (b) Unless a determination under par. (a) reduces the number of closed claims and aggregate indemnity so that the provider is no longer subject to the imposition of a surcharge, the council shall refer all records and information relating to closed claims subject to review, including records and information in the custody of the plan and the fund, to one or more specialists as provided in s. 655.275 (5) (b), Stats.

Ins 17.285(5)(c) (c) Each specialist consulted under par. (b) shall provide the council with a written opinion as to whether the provider met the appropriate standard of care with respect to each closed claim reviewed.

Ins 17.285(5)(d) (d) At least 30 days before the meeting at which the council will decide whether or not to recommend that a surcharge should be imposed on a provider, the council shall notify the provider of the date of the meeting and furnish the provider with a copy of the consultant’s opinions and a list of any other documents on which the recommendation will be based. The council shall make all documents available to the provider upon request for inspection and copying, as provided under s. 19.35, Stats.

Ins 17.285(5)(e) (e) In reviewing a closed claim, the council or a consultant may consider any relevant information except information from a juror who participated in a civil action for damages arising out of an incident under review. The council or a consultant may consult with any person except a juror, interview the provider, employees of the provider or other persons involved in an incident or request the provider to furnish additional information or records.

Ins 17.285(5)(f) (f) The council, after taking into consideration all available information, shall decide whether each closed claim reviewed should be counted in recommending whether to impose a surcharge on the provider.

Ins 17.285(7) (7) Report to board.

Ins 17.285(7)(a) (a) If the total number of closed claims which the council determines should be included and the aggregate indemnity attributable to those claims would be sufficient to require the imposition of a surcharge under s. Ins 17.25 (12m) (c), 17.28 (6s) (c) or both, the council shall prepare a written report for the board recommending the surcharge that should be imposed. The report shall include the factual basis for the determination on each incident involved in the review and a description of any mitigating circumstances.

Ins 17.285(7)(b) (b) If the council determines that one or more closed claims should not be counted and, as a result, the total number of closed claims remaining and the aggregate indemnity attributable to those claims is not sufficient to require the imposition of a surcharge, the council shall prepare a written report for the board recommending that no surcharge should be imposed. The report shall include a brief summary of the basis for the recommendation.

Ins 17.285(7)(c) (c) The council shall furnish the provider with a copy of its report and recommendation to the board and with notice of the right to a hearing as provided in sub. (9).

Ins 17.285(9) (9) Hearing.

Ins 17.285(9)(a) (a) A provider has the right to a hearing under ch. 227, Stats., and ch. Ins 5 on the council’s recommendation, if the provider requests a hearing within 30 days after receiving the notice under sub. (7) (c).

Ins 17.285(9)(am) (am) The reports of the consultant and any other documents relied on by the council in making its recommendation to the board are admissible in evidence at a hearing under this section.

Ins 17.285(9)(b) (b) Notice of the hearing examiner’s proposed decision shall inform the provider that he or she may submit to the board written objections and arguments regarding the proposed findings of fact, conclusions of law and decision within 20 days after the date of the notice.

Ins 17.285(10) (10) Final decision; judicial review. The board shall make the final decision on the imposition of a surcharge. The final decision is reviewable by the circuit court as provided under ch. 227, Stats.

Ins 17.285(11) (11) Surcharge; imposition; refund; duration.

Ins 17.285(11)(a) (a) A surcharge imposed on a provider’s plan premium, fund fee or both after a final decision by the board takes effect on the next billing date and remains in effect during any period of judicial review.

Ins 17.285(11)(c) (c) If judicial review results in the imposition of no surcharge or a reduced surcharge, the plan, the fund or both shall refund the excess amount collected from the provider or apply a credit to the provider’s next plan premium or fund fee bill or both.

Ins 17.285(11)(d) (d) A surcharge remains in effect for 36 months. The percentage imposed shall be reduced by 50% for the 2nd 12 months and by 75% for the 3rd 12 months, if the provider does not accumulate any additional closed claims before the expiration of the surcharge. The time periods specified in this paragraph are tolled on the date a provider stops practicing in this state and remain tolled until the provider resumes practice in this state.

Ins 17.285(11)(e) (e) If the provider accumulates additional closed claims while a surcharge is in effect, the provider is subject to the higher of the following:

Ins 17.285(11)(e)1. 1. The surcharge imposed under sub. (10) and par. (d).

Ins 17.285(11)(e)2. 2. The surcharge determined by the board following a new review of the provider’s claims record under sub. (5).

Ins 17.285(11)(f) (f) If the provider is a physician who changes from one class to another class specified in s. Ins 17.25 (12m) (c) or 17.28 (6s) (c) while a surcharge is in effect, the percentage imposed by the final decision of the board shall be applied to the plan premium, fund fee or both for the physician’s new class effective on the date the class change occurs.

Ins 17.285(12) (12) Request from private insurer. If the council receives a request for a recommendation under s. 655.275 (5) (a) 3., Stats., from a private insurer, the council shall follow the procedures specified in subs. (3) to (5) and notify the private insurer and the provider of the determination it would make under sub. (5) (f) if the provider’s primary insurer were the plan. A provider is not entitled to a hearing on any determination reported under this subsection.

Ins 17.285(13) (13) Confidentiality. The final decision of the board and all information and records relating to the review procedure are the work product of the board and are confidential.

Ins 17.285(14) (14) Member and consultant compensation. Council members and consultants shall be paid $250 per meeting attended or $250 per report filed by a consultant based on the consultant’s review of a file under s. 655.275 (5) (b), Stats.

Ins 17.285 History History: Cr. Register, February, 1988, No. 386, eff. 3-1-88; am. (2) (a) and (b), (3) (a) and (c) 2., (5) (b) (intro.), (7) (a), (8), (9) (a), (11) (f) and (14), cr. (2m) and (4) (c) 2., renum. (4) (c) to be (4) (c) 1., Register, June, 1990, No. 414, eff. 7-1-90; am. (2) (a), (b), (d) and (e), (7) (b), (11) (a), (c) to (e) (intro.) and 1., (f) and (12), renum. (3) (a), (4) (b) (intro.) and 1., (5) (d), (8) to be (3), (4) (c), (5) (e) and (7) (c) and am. (3), (4) (c) and (7) (c), r. (3) (b) and (d), (4) (b) 2., (c) (d), (6) and (11) (b), cr. (2) (cg) and (cr), (2s), (4) (b), (5) (d) and (f), (9) (am), r. and recr. (4) (a), (5) (a) to (c) and (9) (a), Register, January, 1992, No. 433, eff. 2-1-92; CR 03-039: cr. (14) Register October 2003 No. 574, eff. 11-1-03.

Ins 17.29 Ins 17.29 Servicing agent.

Ins 17.29(1) (1) Purpose. This section implements s. 655.27 (2), Stats., relating to contracting for claim services for the fund.

Ins 17.29(2) (2) Criteria. The board shall establish the criteria for the selection of the servicing agent prior to the expiration of each contract term.

Ins 17.29(3) (3) Selection. The commissioner, with the approval of the board, shall select a servicing agent through the competitive negotiation process.

Ins 17.29(4) (4) Contract term. The commissioner, with the approval of the board, shall establish the term of the contract with the servicing agent. The contract shall include a provision for its cancellation if performance or delivery is not made in accordance with its terms and conditions.

Ins 17.29(5) (5) The servicing agent shall perform all of the following functions:

Ins 17.29(5)(am) (am) Reporting to the claims committee of the board on claim files identified by that committee, at the times and in the manner specified by that committee.

Ins 17.29(5)(b) (b) Establishing and revising case reserves.

Ins 17.29(5)(c) (c) Contracting for annuity payments as part of structured settlements under guidelines adopted by the board.

Ins 17.29(5)(d) (d) Investigating and evaluating claims.

Ins 17.29(5)(e) (e) Negotiating to settlement all claims made against the fund except in cases where this responsibility is retained by the claims committee of the board.

Ins 17.29(5)(f) (f) Filing with the commissioner and the board the annual report required under s. 655.27 (2), Stats., and any other report requested by the commissioner or the board.

Ins 17.29(5)(g) (g) Reviewing court orders, verdicts and judgments and making recommendations on appeals.

Ins 17.29(5)(h) (h) All other functions specified in the contract.

Ins 17.29 History History: Cr. Register, February, 1984, No. 338, eff. 3-1-84; am. (1), (3) and (4), r. and recr. (2), r. (5) (a), renum. (5) (b) to be (5) and am. (5) (intro.), (b) to (g), cr. (5) (am) and (h), Register, June, 1990, No. 414, eff. 7-1-90.

Ins 17.30 Ins 17.30 Peer review council assessments.

Ins 17.30(1) (1) Purpose. This section implements ss. 655.27 (3) (am) and 655.275 (6), Stats., relating to the assessment of fees sufficient to cover the costs, including the costs of administration, of the patients compensation fund peer review council appointed under s. 655.275 (2), Stats.

Ins 17.30(2) (2) Assessments.

Ins 17.30(2)(a) (a) The following fees shall be assessed annually beginning with fiscal year 1986-87:

Ins 17.30(2)(a)1. 1. Against the fund, one-half of the actual cost of operating the council for each fiscal year, less one-half of the amounts, if any, collected under subd. 3.

Ins 17.30(2)(a)2. 2. Against the plan, one-half of the actual cost of operating the council for each fiscal year, less one-half of the amounts, if any, collected under subd. 3.

Ins 17.30(2)(a)3. 3. Against a private medical malpractice insurer, the actual cost incurred by the council for its review of any claim paid by the private insurer, if the private insurer requests a recommendation on premium adjustments with respect to that claim under s. 655.275 (5) (a) 3., Stats.

Ins 17.30(2)(b) (b) Amounts collected under par. (a) 3. shall be applied to reduce, in equal amounts, the assessments under par. (a) 1. and 2. for the same fiscal year.

Ins 17.30(3) (3) Payment. Each assessment under sub. (2) shall be paid within 30 days after the billing date.

Ins 17.30 History History: Cr. Register, June, 1987, No. 378, eff. 7-1-87; am. (2) (a) 1. and 2., Register, June, 1990, No. 414, eff. 7-1-90.

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

Ins 17.35(1) (1) Purpose. This section implements ss. 631.20 and 655.24, Stats., relating to the approval of policy forms for health care liability insurance subject to s. 655.23, Stats.

Ins 17.35(2) (2) Required coverage. To qualify for approval under s. 631.20, Stats., a policy shall at a minimum provide all of the following:

Ins 17.35(2)(a) (a) Coverage for providing or failing to provide health care services to a patient.

Ins 17.35(2)(b) (b) Coverage for 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 an insured.

Ins 17.35(2)(c) (c) Coverage for 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 an insured.

Ins 17.35(2)(d) (d) Indemnity limits of not less than the amounts specified in s. 655.23 (4), Stats.

Ins 17.35(2)(e) (e) Coverage for supplemental payments in addition to the indemnity limits, including attorney fees, litigation expenses, costs and interest.

Ins 17.35(2)(f) (f) That the insurer will provide a defense of the insured and the fund until there has been a determination that coverage does not exist under the policy or unless otherwise agreed to by the insurer and the fund.

Ins 17.35(2)(g) (g) If the policy is a claims-made policy:

Ins 17.35(2)(g)1. 1. A guarantee that the insured can purchase an unlimited extended reporting endorsement upon cancellation or nonrenewal of the policy.

Ins 17.35(2)(g)2. 2. If the policy is a group policy, a provision that any health care provider, as defined under s. 655.001 (8), Stats., whose participation in the group terminates has the right to purchase an individual unlimited extended reporting endorsement.

Ins 17.35(2)(g)3. 3. A prominent notice that the insured has the obligation under s. 655.23 (3) (a), Stats., to purchase the extended reporting endorsement unless other insurance is available to ensure continuing coverage for the liability of all insureds under the policy for the term the claims-made policy was in effect.

Ins 17.35(2)(g)4. 4. A prominent notice that the insurer will notify the commissioner if the insured does not purchase the extended reporting endorsement and that the insured, if a natural person, may be subject to administrative action by his or her licensing board.

Ins 17.35(2b) (2b) Aggregate limits; unlimited extended reporting endorsements.

Ins 17.35(2b)(a) (a) This subsection interprets and implements s. 655.23 (4), Stats.

Ins 17.35(2b)(b) (b) Highest aggregate limit applies.

Ins 17.35(2b)(b)1. 1. ‘Claims-made coverage.’ The aggregate limit applicable to all claims reported during a reporting year of a claims-made policy shall be the highest limit specified in s. 655.23 (4) (b), Stats., that applies during the reporting year.

Ins 17.35(2b)(b)2. 2. ‘Occurrence coverage.’ The limit applicable to all occurrences during an occurrence year of an occurrence policy shall be the highest limit specified in s. 655.23 (4), Stats., that applies during the occurrence year.

Ins 17.35(2b)(c) (c) Unlimited extended reporting endorsements issued before January 1, 1999. Before January 1, 1999, the aggregate limit applicable to an unlimited extended reporting endorsement shall be one of the following:

Ins 17.35(2b)(c)1. 1. The total amount of the annual aggregate limit specified in s. 655.23 (4), Stats., as it applied on the date of the occurrence, shall be available for each occurrence year, less amounts previously paid under any policy for that occurrence year.

Ins 17.35(2b)(c)2. 2. The following minimum percentage of the annual aggregate limit specified in s. 655.23 (4), Stats., as it applied to the last reporting year of the canceled or nonrenewed claims-made policy shall be available for all claims reported under the extended reporting endorsement: 100% when the policy was in effect for 1 year or less, including any retroactive coverage period; 130% when the policy was in effect for more than 1 year, but less than or equal to 2 years, including any retroactive coverage period; 150% when the policy was in effect for more than 2 years, but less than or equal to 3 years, including any retroactive coverage period; 160% when the policy was in effect for more than 3 years, including any retroactive coverage period.

Ins 17.35(2b)(d) (d) Unlimited extended reporting endorsements issued on and after January 1, 1999. On and after January 1, 1999 the minimum aggregate limit applicable to an unlimited extended reporting endorsement shall be that specified in par. (c) 2.

Ins 17.35(2e) (2e) Requirements for group coverage.

Ins 17.35(2e)(a) (a) In this section, “provider” means a health care provider, as defined in s. 655.001 (8), Stats.

Ins 17.35(2e)(b) (b) An insurer or self-insured provider that provides primary coverage under a group policy or self-insured plan shall do all of the following:

Ins 17.35(2e)(b)1. 1. At the time of original issuance of the policy or when the self-insured plan takes effect, and each time coverage for an individual provider is added:

Ins 17.35(2e)(b)1.a. a. Furnish each covered provider with a copy of the policy or a certificate of coverage specifying the coverage provided and whether the coverage is limited to a specific practice location, to services performed for a specific employer or in any other way.

Ins 17.35(2e)(b)1.b. b. Include on the first page of the policy or the certificate of coverage, or in the form of a sticker, letter or other form included with the policy or certificate of coverage, that it is the responsibility of the individual provider to ensure that he or she has health care liability insurance coverage meeting the requirements of ch. 655, Stats., in effect for all of his or her practice in this state, unless the provider is exempt from the requirements of that chapter.

Ins 17.35(2e)(b)2. 2. For a policy or self-insured plan in effect on October 1, 1993, furnish the documents specified in subd. 1. a. and b. to each individual covered provider before the next renewal date or anniversary date of the policy or self-insured plan.

Ins 17.35(2e)(b)3. 3. Notify each covered provider individually when the policy or self-insured plan is cancelled, nonrenewed or otherwise terminated, or amended to affect the coverage provisions.

Ins 17.35(2e)(b)4. 4. On the certificate of insurance filed with the fund under s. 655.23 (3) (b) or (c), Stats., and s. Ins 17.28 (5), specify whether the coverage is limited to a specific practice location, to services performed for a specific employer or in any other way.