Wisconsin Legislature: Ins 17.25(1)(a)

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

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

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

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

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

Ins 17.01 Payment of mediation fund fees.

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

(2) Fee.

(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.

(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.

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

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

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

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

(a) For physicians — $0.

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

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 Review of classification.

(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:

(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.

(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.

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

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

(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.

(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.

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 Wisconsin health care liability insurance plan.

(1) Findings.

(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.

(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).

(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.

(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.

(3) Coverage; exclusions.

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

1. Providing or failing to provide health care services to a patient.

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.

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.

(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.

1. Criminal acts.

2. Intentional sexual acts and other intentional torts.

3. Restraint of trade, anti-trust violations and racketeering.

4. Defamation.

5. Employment, religious, racial, sexual, age and other unlawful discrimination.

6. Pollution resulting in injury to a 3rd party.

7. Acts that occurred before the effective date of the policy of which the insured was aware or should have been aware.

8. Incidents occurring while and insured’s license to practice is suspended, revoked, surrendered or otherwise terminated.

9. Criminal and civil fines, forfeitures and other penalties.

10. Punitive and exemplary damages.

11. Liability of the insured covered by other insurance, such as worker’s compensation, automobile, fire or general liability.

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.

13. Liability of others assumed by the insured under a contract or agreement.

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

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.

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.

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.

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.

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.

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

1. Owners, landlords and tenants liability insurance.

2. Owners and contractors protective liability insurance.

3. Completed operations and products liability insurance.

4. Contractual liability insurance.

5. Personal injury liability insurance.

(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.

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

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

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

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

(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.

(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.

(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.

(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.

(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).

(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.

(j) A nursing home, as defined in s. 50.01 (3), Stats., whose operations are combined as a single entity with a hospital, whether or not the nursing home operations are physically separate from the hospital operations.

(k) A health care facility owned or operated by a county, city, village or town in this state, or by a county department established under s. 51.42 or 51.437, Stats., if the facility would otherwise be eligible for coverage under this subsection.

(L) A corporation organized to manage approved training programs for medical or osteopathic physicians licensed under ch. 448, Stats.

(m) A cardiovascular perfusionist.

(n) An ambulatory surgery center, as defined in s. DHS 101.03 (10).

(6) Definitions.

(a) In this subsection:

1. “Personal injury liability insurance” means any insurance coverage against loss by the personal injury or death of any person for which loss the insured is liable. “Personal injury liability insurance” includes the personal injury liability component of multi-peril policies, but does not include steam boiler insurance authorized under s. Ins 6.75 (2) (a), worker’s compensation insurance authorized under s. Ins 6.75 (2) (k) or medical expense coverage authorized under s. Ins 6.75 (2) (d) or (e).

2. “Premiums written” means gross direct premiums less return premiums, dividends paid or credited to policyholders and the unused or unabsorbed portions of premium deposits, with respect to personal injury liability insurance covering insureds or risks residing or located in this state.

(b)

1. Each insurer authorized in this state to write personal injury liability insurance, except a town mutual organized under ch. 612, Stats., is a member of the plan.

2. An insurer’s membership in the plan terminates if the insurer is no longer authorized to write personal injury liability insurance in this state. The effective date of termination shall be the last day of the plan’s current fiscal year. A terminated insurer shall continue to be governed by this subsection until it completes all of its obligations under the plan.

3. Subject to the approval of the commissioner, the board may charge a reasonable annual membership fee, not to exceed $50.00.