Chapter 40

40.51(8m) (8m) Every health care coverage plan offered by the group insurance board under sub. (7) shall comply with ss. 631.95, 632.722, 632.729, 632.746 (1) to (8) and (10), 632.747, 632.748, 632.798, 632.83, 632.835, 632.85, 632.853, 632.855, 632.861, 632.867, 632.885, 632.89, and 632.895 (11) to (17).

40.51(9) (9) Every health maintenance organization and preferred provider plan offered by the state under sub. (6) shall comply with s. 632.87 (2m).

40.51(10) (10) Beginning on July 1, 1988, any eligible employee, as defined in s. 40.02 (25) (b) 11., may become covered by group health insurance by electing coverage within 60 days after the date on which he or she ceases to be a participating employee, and by paying the cost of the required premiums, as provided in s. 40.05 (4) (ad). Any eligible employee who does not so elect at the time specified, or who later cancels the insurance, shall not thereafter become insured unless the employee furnishes evidence of insurability satisfactory to the insurer, at the employee’s expense or obtains coverage subject to contractual waiting periods, and pays the cost of the required premiums, as provided in s. 40.05 (4) (ad). The method of payment shall be specified in the health insurance contract.

40.51(10m) (10m) Any eligible employee, as defined in s. 40.02 (25) (b) 6e. and 6g., may become covered under any health care coverage plan offered under sub. (6), without furnishing evidence of insurability, by submitting to the department, on a form provided by the department and within 30 days after the date on which the department receives the employee’s application for a retirement annuity or for a lump sum payment under s. 40.25 (1), an election to obtain the coverage, by obtaining coverage subject to contractual waiting periods and by paying the cost of the required premiums, as provided in s. 40.05 (4) (ad).

40.51(11) (11) An eligible state employee who elects insurance coverage with a county under s. 978.12 (6) may not elect coverage under this section.

40.51(12) (12) Every defined network plan, as defined in s. 609.01 (1b), and every limited service health organization, as defined in s. 609.01 (3), that is offered by the state under sub. (6) shall comply with ch. 609.

40.51(13) (13) Every defined network plan, as defined in s. 609.01 (1b), and every limited service health organization, as defined in s. 609.01 (3), that is offered by the group insurance board under sub. (7) shall comply with ch. 609.

40.51(16) (16) Beginning on the date specified by the department, but not earlier than March 20, 1992, and not later than July 1, 1992, any eligible employee, as defined in s. 40.02 (25) (b) 6m., may elect coverage under any health care coverage plan offered under sub. (6) by furnishing, at the employee’s expense, evidence of insurability satisfactory to the insurer or by obtaining coverage subject to contractual waiting periods, and by paying the cost of the required premiums, as provided in s. 40.05 (4) (ad). The method to be used shall be specified in the health insurance contract.

40.51 History History: 1981 c. 96; 1983 a. 27; 1985 a. 29; 1987 a. 27, 107, 356; 1987 a. 403 s. 256; 1989 a. 31, 93, 121, 129, 182, 201, 336, 359; 1991 a. 39, 70, 113, 152, 269, 315, 1993 a. 450, 481; 1995 a. 289; 1997 a. 27, 155, 202, 237, 252; 1999 a. 32, 95, 115, 155; 2001 a. 16, 38, 104; 2003 a. 33; 2005 a. 194; 2007 a. 36; 2009 a. 14, 28, 146, 218, 346; 2011 a. 10, 32, 133, 260; 2013 a. 186; 2015 a. 55; 2017 a. 59; 2019 a. 185; 2021 a. 9; 2023 a. 91.

40.51 Annotation Monies appropriated to the Public Employee Trust Fund are not “state funds”; the legislature may not restrict the use of those funds by a statute governing the use of “state or local funds.” The restrictions on the use of “state and local” funds for abortions under s. 20.927 do not apply to health plans offered under this section. OAG 1-95

40.51 Annotation Under sub. (7) (a) and s. 40.03 (6) (a) 2., the board may offer any group insurance plan on a self–insured basis, and a municipal employer may offer a health care coverage plan through a program offered by the group insurance board. Applying these sections as written, a municipal employer may offer a self-insured plan if offered by the Board. Article VIII, section 3 of the Wisconsin Constitution poses no bar because offering self-insured plans does not extend the state’s credit. OAG 3-17.

40.513 40.513 Payment of stipend in lieu of health care coverage for state employees.

40.513(1) (1) Subject to sub. (3), a state employee who is eligible to receive health care coverage under s. 40.51 (6) may elect not to receive that coverage and instead be paid an annual stipend equal to $2,000 if all of the following occur:

40.513(1)(a) (a) The employee is eligible for an employer contribution under s. 40.05 (4) (ag).

40.513(1)(b) (b) The employee makes the election on a form provided by the department.

40.513(1)(c) (c) The employee makes the election within 30 days of being hired or during any applicable enrollment period established by the department. If the employee makes the election within 30 days of being hired, the employee may not receive health care coverage under s. 40.51 (6) during the calendar year in which the election is made. If the employee makes the election during any annual applicable enrollment period established by the department, the employee may not receive health care coverage under s. 40.51 (6) during the succeeding calendar year.

40.513(2) (2) A stipend paid to an employee under sub. (1) shall be paid from the appropriation account that would otherwise have been used to pay the employer contribution toward premium payments under s. 40.05 (4) (ag) for that employee. If an employee makes the election within 30 days of being hired, the employer shall prorate the $2,000 stipend according to the remaining number of months in the calendar year in which the election is made.

40.513(3) (3) A state employee may not be paid an annual stipend under sub. (1) if any of the following occurs:

40.513(3)(a) (a) The employee was eligible for an employer contribution under s. 40.05 (4) (ag) during the 2015 calendar year and elected not to receive health care coverage in that calendar year.

40.513(3)(b) (b) The employee’s spouse is receiving health care coverage under s. 40.51 (6).

40.513 History History: 2015 a. 55; 2017 a. 59.

40.515 40.515 Health savings accounts; high-deductible health plan.

40.515(1) (1) In addition to the health care coverage plans offered under s. 40.51 (6), beginning on January 1, 2015, the group insurance board shall offer to all state employees the option of receiving health care coverage through a high-deductible health plan and the establishment of a health savings account. Under this option, each employee shall receive health care coverage through a high-deductible health plan. The state shall make contributions into each employee’s health savings account in an amount specified by the administrator of the division of personnel management in the department of administration under s. 40.05 (4) (ah) 4. In designing a high-deductible health plan, the group insurance board shall ensure that the plan may be used in conjunction with a health savings account.

40.515(2) (2) The group insurance board may contract with any person to provide administrative and other services relating to health savings accounts established under this section.

40.515(3) (3) The group insurance board may collect fees from state agencies to pay all administrative costs relating to the establishment and operation of health savings accounts established under this section. The group insurance board shall develop a methodology for determining each state agency’s share of the administrative costs. Moneys collected under this subsection shall be credited to the appropriation account under s. 20.515 (1) (tm).

40.515(4) (4) Beginning on January 1, 2015, to the extent practicable, any agreement with any insurer or provider to provide health care coverage to state employees under s. 40.51 (6) shall require the insurer or provider to also offer a high-deductible health plan that may be used in conjunction with a health savings account.

40.515 History History: 2013 a. 20; 2015 a. 55.

40.52 40.52 Health care benefits.

40.52(1) (1) The group insurance board shall establish by contract a standard health insurance plan in which all insured employees shall participate except as otherwise provided in this chapter. The standard plan shall provide:

40.52(1)(a) (a) A family coverage option for persons desiring to provide for coverage of all eligible dependents and a single coverage option for other eligible persons.

40.52(1)(b) (b) Coverage for expenses incurred by the installation and use of an insulin infusion pump, coverage for all other equipment and supplies used in the treatment of diabetes, including any prescription medication used to treat diabetes, and coverage of diabetic self-management education programs. Coverage required under this paragraph shall be subject to the same exclusions, limitations, deductibles, and coinsurance provisions of the plan as other covered expenses, except that insulin infusion pump coverage may be limited to the purchase of one pump per year and the plan may require the covered person to use a pump for 30 days before purchase.

40.52(2) (2) Health insurance benefits under this subchapter shall be integrated, with exceptions determined appropriate by the group insurance board, with benefits under federal plans for hospital and health care for the aged and disabled. Exclusions and limitations with respect to benefits and different rates may be established for persons eligible under federal plans for hospital and health care for the aged and disabled in recognition of the utilization by persons within the age limits eligible under the federal program. The plan may include special provisions for spouses and other dependents covered under a plan established under this subchapter where one spouse is eligible under federal plans for hospital and health care for the aged but the others are not eligible because of age or other reasons. As part of the integration, the department may, out of premiums collected under s. 40.05 (4), pay premiums for the federal health insurance.

40.52(3) (3) The group insurance board, after consulting with the board of regents of the University of Wisconsin System, shall establish the terms of a health insurance plan for graduate assistants, for teaching assistants, and for employees-in-training designated by the board of regents, who are employed on at least a one-third full-time basis and for teachers who are employed on at least a one-third full-time basis by the University of Wisconsin System with an expected duration of employment of at least 6 months but less than one year. Annually, the administrator of the division of personnel management in the department of administration shall establish the amount that the employer is required to pay in premium costs under this subsection.

40.52(3m) (3m) The group insurance board, after consulting with the board of directors of the University of Wisconsin Hospitals and Clinics Authority, shall establish the terms of a health insurance plan for graduate assistants, and for employees-in-training designated by the board of directors, who are employed on at least a one-third full-time basis with an expected duration of employment of at least 6 months.

40.52(4) (4) The group insurance board shall establish the terms of health insurance plans for eligible employees, as defined under s. 40.02 (25) (b) 9. and 11., who elect coverage under s. 40.51 (7) or (10).

40.52 History History: 1981 c. 96, 381; 1983 a. 429; 1987 a. 107; 1987 a. 327, 356; 1987 a. 403 s. 256; 1989 a. 13; 1991 a. 45; 1995 a. 216; 2001 a. 82; 2009 a. 28; 2011 a. 10; 2015 a. 55; 2017 a. 59.

40.52 Annotation The denial of a homosexual employee’s request for family coverage for herself and her companion did not violate equal protection or the prohibition of discrimination on the basis of marital status, sexual orientation or gender under s. 111.321. Phillips v. Wisconsin Personnel Commission, 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992).

40.52 Annotation The insurance subrogation law permitting a subrogated insurer to be reimbursed only if the insured has been made whole applies to the state employee health plan. Leonard v. Dusek, 184 Wis. 2d 267, 516 N.W.2d 463 (Ct. App. 1994).

40.52 Annotation Barring spouses who are both state employees from each electing family medical coverage does not discriminate on the basis of marital status. Kozich v. Employee Trust Funds Board, 203 Wis. 2d 363, 553 N.W.2d 830 (Ct. App. 1996), 95-2219.

40.52 Annotation Barring spouses who are both public employees from each electing family medical coverage is excepted from the prohibition under ch. 111 against discrimination based on marital status. Motola v. LIRC, 219 Wis. 2d 588, 580 N.W.2d 297 (1998), 97-0896.

40.55 40.55 Long-term care coverage.

40.55(1) (1) Except as provided in sub. (5), the state shall offer, through the group insurance board, to eligible employees under s. 40.02 (25) (bm) and to state annuitants long-term care insurance policies which have been filed with the office of the commissioner of insurance and which have been approved for offering under contracts established by the group insurance board. The state shall also allow an eligible employee or a state annuitant to purchase those policies for his or her spouse or parent.

40.55(2) (2) For any long-term care policy offered through the group insurance board, the insurer may impose underwriting considerations in determining the initial eligibility of persons to cover and what premiums to charge.

40.55(4) (4) The group insurance board may charge a fee to each insurer whose policy is offered under this section, but the fee may not exceed the direct costs incurred by the group insurance board in offering the policy.

40.55(5) (5) An eligible state employee who elects insurance coverage with a county under s. 978.12 (6) may not elect coverage under this section.

40.55 History History: 1987 a. 356; 1989 a. 31; 1991 a. 152; 2007 a. 168; 2009 a. 28; 2011 a. 32; 2017 a. 59.

40.56 40.56 Abortion coverage prohibited. No abortion coverage or services, the performance of which is ineligible for funding under s. 20.927, may be provided in a health insurance plan or health care coverage plan offered under this subchapter.

40.56 History History: 2017 a. 191.

subch. V of ch. 40 SUBCHAPTER V

DISABILITY BENEFITS

40.61 40.61 Income continuation coverage.

40.61(1) (1) The procedures and provisions pertaining to enrollment, premium transmitted and coverage of eligible employees for income continuation benefits shall be established by contract or rule except as otherwise specifically provided by this chapter.

40.61(2) (2) Except as provided in sub. (4), any eligible employee may become covered by income continuation insurance by electing coverage within 30 days of initial eligibility, to be effective as of the first day of the month that first occurs during the 30-day period, or by electing coverage within 60 days of initially becoming eligible for a higher level of employer contribution towards the premium cost to be effective as of the first day of the month following the date of eligibility for teachers employed by the university and effective as of the following April 1 for all other employees. Any employee who does not so elect at one of these times, or who subsequently cancels the insurance, may not thereafter become insured unless the employee furnishes evidence of insurability under the terms of the contract, or as otherwise provided by rule for employees under sub. (3), at the employee’s own expense or obtains coverage subject to contractual waiting periods if contractual waiting periods are provided for by the contract or by rule for employees under sub. (3). An employee who furnishes satisfactory evidence of insurability under the terms of the contract shall become insured as of the first day of the month following the date of approval of evidence. The method to be used shall be determined by the group insurance board under sub. (1).

40.61(3) (3) Any employer under s. 40.02 (28), other than the state, may offer to all of its employees an income continuation insurance plan through a program offered by the group insurance board. Notwithstanding sub. (2) and ss. 40.05 (5) and 40.62, the department may by rule establish different eligibility standards or contribution requirements for such employees and employers and may by rule limit the categories of employers which may be included as participating employers under this subchapter.

40.61(4) (4) An eligible state employee who elects insurance coverage with a county under s. 978.12 (6) may not elect coverage under this section.

40.61(5) (5) If, as a result of employer error, an eligible employee has not filed an application with the department as required under sub. (2) or (3) or made premium contributions as required under s. 40.05 (5) within 60 days after becoming eligible for income continuation insurance coverage, the employee is considered not to be insured for that coverage. The employee may become insured by filing a new application under sub. (2) or (3) within 30 days after the employee receives from the employer written notice of the error. An employee is not required to furnish evidence of insurability to become insured under this subsection. An employee becomes insured under this subsection on the first day of the first month beginning after the date on which the employer receives the employee’s new application under sub. (2) or (3) and upon approval by the department.

40.61 History History: 1981 c. 96; 1985 a. 29; 1987 a. 309; 1989 a. 31; 2005 a. 402; 2015 a. 55.

40.62 40.62 Income continuation insurance benefits.

40.62(1) (1) The group insurance board shall establish an income continuation insurance plan providing for full or partial payment of the financial loss of earnings incurred as a result of injury or illness with separate provisions for short-term insurance with a benefit duration of no more than one year and long-term insurance covering injury or illness of indefinite duration. Employees insured under the plan shall be eligible for benefits upon exhaustion of accumulated sick leave and completion of the elimination period established by the group insurance board.

40.62(1m) (1m) Notwithstanding sub. (1), no employee may be required to use more than 130 days of accumulated sick leave unless required to exhaust accumulated sick leave under s. 40.63 (1) (c).

40.62(2) (2) Sick leave accumulation shall be determined in accordance with rules of the department, any collective bargaining agreement under subch. V of ch. 111, and ss. 13.121 (4), 36.30, 49.825 (4) (d) and (5) (d), 49.826 (4) (d), 230.35 (2), 233.10, 238.04 (8), 757.02 (5) and 978.12 (3).

40.62 History History: 1981 c. 96; 1987 a. 309; 1989 a. 13, 31; 1995 a. 27; 2009 a. 15, 28; 2011 a. 10, 32; 2013 a. 166.

40.63 40.63 Disability annuities.

40.63(1) (1) Any participating employee is entitled to a disability annuity from the Wisconsin retirement system, beginning on the date determined under sub. (8) if, prior to attaining his or her normal retirement date, all of the following apply:

40.63(1)(a) (a) The employee has earned at least one-half year of creditable service in each of at least 5 calendar years not including any calendar year preceding by more than 7 calendar years the year in which the application for the disability annuity is received by the department, or has earned a total of at least 5 years of creditable service during that period of time, or, if the disability was a result of employment as a participating employee for an employer, last rendered services to a participating employer not more than 2 years prior to the date the application for the disability annuity is received by the department.

40.63(1)(b) (b) The employee becomes unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.

40.63(1)(c) (c) The employee is not entitled to any earnings from the employer and the employer has certified that it has paid to the employee all earnings to which the employee is entitled, that the employee is on a leave of absence and is not expected to resume active service, or that the employee’s participating employment has been terminated, because of a disability as described in par. (b) and as a consequence the employee is not entitled to any earnings from the employer. In this paragraph, “earnings” does not include bonus compensation to which the employee was entitled under s. 25.156 (7) (a), 1997 stats.

40.63(1)(d) (d) Except as provided in sub. (8) (h) 2., the employee is certified in writing by at least 2 licensed and practicing physicians approved or appointed by the department, to be disabled as described in par. (b).

40.63(2) (2) For purposes of sub. (1) a participant shall be considered a participating employee only if no other employment which is substantial gainful activity has intervened since service for the participating employer terminated and if the termination of active service for the participating employer was due to disability. For purposes of sub. (1) an elected official shall be considered to have terminated active service due to disability if a disability is determined, under sub. (1), to exist at the end of the elected official’s term of office.

40.63(3) (3) For purposes of sub. (1) (a) only, if a participant was previously receiving a disability annuity which was terminated, the participant is deemed to have received full creditable service for any month for which the previous disability annuity was paid.

40.63(4) (4) Notwithstanding sub. (1) (b), a protective occupation participant is not disqualified from receiving a disability annuity if the participant has accumulated 15 or more years of creditable service and would attain age 55 in 60 months or less after the occurrence of disability and the medical evidence, as provided in sub. (1), establishes a disability to the extent that the participant can no longer efficiently and safely perform the duties required by the participant’s position, and that the condition is likely to be permanent.

40.63(5) (5) The department shall make a report based on the evidence prescribed in subs. (1) to (4) as to whether a disability benefit shall be granted and the department shall submit the report to the teachers retirement board for teacher participants and to the Wisconsin retirement board for participants other than teachers. A copy of the report and notice of the date that the report was presented, or will be presented, to the appropriate board and the board’s name, shall be mailed to the applicant and to the applicant’s former employer. Either the applicant or the employer may request a hearing under s. 227.44 to contest the department’s determination by filing a timely appeal with the appropriate board. If a request for a hearing is not timely filed, and the appropriate board does not disapprove the department’s determination or request additional information within the time allowed for filing appeals, the report shall be final. If the board requests additional information, the report shall be final 30 days after the board’s receipt of the requested information unless the board disapproves the report. If the report is disapproved, notice of the board’s action shall be sent to the applicant and the applicant’s former employer. Either the applicant or the employer may contest the board’s action by submitting a written request for a hearing under s. 227.44 to the appropriate board within 30 days following the date on which the notice of the board’s action was mailed to the applicant or the employer.

40.63(6) (6) Any person entitled to payments under this section who may otherwise be entitled to payments under s. 66.191, 1981 stats., may file with the department and the department of workforce development a written election to waive payments due under this section and accept in lieu of the payments under this section payments as may be payable under s. 66.191, 1981 stats., but no person may receive payments under both s. 66.191, 1981 stats., and this section. However any person otherwise entitled to payments under this section may receive the payments, without waiver of any rights under s. 66.191, 1981 stats., during any period as may be required for a determination of the person’s rights under s. 66.191, 1981 stats. Upon the final adjudication of the person’s rights under s. 66.191, 1981 stats., if waiver is filed under this section, the person shall immediately cease to be entitled to payments under this section and the system shall be reimbursed from the award made under s. 66.191, 1981 stats., for all payments made under this section.

40.63(7) (7) If an application, by a participant age 55 or over, or by a protective occupation participant age 50 or over, for any disability annuity is disapproved, the date which would have been the disability annuity effective date, or the day after the date of separation from the last participating employer, whichever is later, shall be the retirement annuity effective date if so requested by the applicant within 60 days of the disapproval or, if the disapproval is appealed, within 60 days of final disposition of the appeal.

40.63(8) (8) Disability annuity effective dates and amounts shall be determined in the same manner and shall be subject to the same limitations and options as retirement annuities except that separate actuarial tables may be applied and except that:

40.63(8)(a) (a) The creditable service shall include assumed service between the date the disability occurred, or the last day for which creditable service was earned, if later, and the date on which the participant will reach the participant’s normal retirement date. The assumed service shall be prorated if the participant’s employment was less than full time.

40.63(8)(b) (b) For purposes of s. 40.23 (2m) (e) and (f) only, the participant is deemed to have attained the participant’s normal retirement date on the effective date of the annuity.

40.63(8)(d) (d) If an annuity option other than the normal form is elected, the amount of the normal form disability annuity which is greater than the normal form retirement annuity to which the participant would be entitled under s. 40.23, notwithstanding the minimum age requirement for receiving an annuity, shall be a straight life annuity terminating at the death of the annuitant. The balance of the present value of the disability annuity, after providing for the straight life annuity, shall be applied to provide an annuity in the optional form elected.

40.63(8)(e) (e) The annuity option provided by s. 40.24 (1) (e) may not be elected.

40.63(8)(f) (f) If an employer certifies that an employee’s date of termination of employment is being extended past the last day worked due to any payment for accumulated sick leave, vacation or compensatory time, a participating employee may file an application for a disability annuity as if the last day worked were the last day paid. Regardless of the application date for a disability annuity, the date of termination of employment for effective date purposes shall be deemed to be the last day for which the participant was paid, including any payment for accumulated leave, but if a disability annuity applicant whose application has been approved dies before the last day paid, but after the last day worked, the effective date is the date of death.

40.63(8)(g) (g) If processing of an application is delayed more than 12 months beyond the date the application is received by the department because of failure to receive some or all of the evidence required under subs. (1) to (4), the application shall be canceled but the applicant may reapply for a disability benefit if otherwise still eligible.

40.63(8)(h) (h) If an applicant dies prior to the date a decision regarding the approval or disapproval of an application for a disability benefit becomes final under sub. (5), the application is deemed to have been approved prior to the applicant’s death if:

40.63(8)(h)1. 1. The applicant was eligible for the disability benefit;

40.63(8)(h)2. 2. The department received an application for the disability benefit in the form approved by the department and at least one written qualifying medical certification required under sub. (1) (d); and

40.63(8)(h)3. 3. The applicant dies on or after the date which would have been the effective date of the disability benefit.

40.63(8)(i) (i) For the purpose of par. (h) an applicant is conclusively presumed not eligible for a disability benefit if the application is based on an alleged disability which was the basis for a previous application which the department denied.

40.63(9) (9) 

40.63(9)(a) (a) The board may require that any disability annuitant shall be examined by at least one licensed and practicing physician, designated or approved by the board, during any calendar year the annuitant is receiving the annuity. A written report of the examination in a form approved by the department which shall indicate whether or not the annuitant is still disabled as specified in sub. (1) (b), shall be filed with the department. This paragraph and par. (c) shall not apply to any annuitant who has attained the normal retirement date for the annuitant’s former participant classification.

40.63(9)(b) (b) If a disability annuitant, prior to attaining the normal retirement date for the annuitant’s former participant classification, receives earnings or other earned income from any source whatsoever for personal services, including services performed on a contractual basis, the annuity shall be suspended, except for any amount provided by additional contributions, and no payment shall be payable after the first of the month in which the earnings or earned income received during any calendar year exceed the amount established under sub. (11), except that if payment was being made under sub. (4) the annuity may only be suspended if the annuitant is employed in a law enforcement or fire fighting capacity and then the suspension shall be effective immediately. The suspended amount shall be reinstated on January 1 following the date of suspension, or, if earlier, on the first day of the 2nd month following the termination of personal services. An amount, which is reinstated in any calendar year, other than on January 1 of the calendar year, shall again be suspended for any subsequent month in the calendar year following a month in which the disability annuitant receives any amount of earnings or earned income for personal services. The department may request any earnings or compensation information as it deems necessary to implement the provisions of this paragraph and par. (c).