Chapter DWD 80

DWD 80.62(9) (9) Determining the solvency of the fund.

DWD 80.62(9)(a) (a) The department shall monitor the fund’s net balance of assets and liabilities to determine if the fund is solvent using the following accounting principles:

DWD 80.62(9)(a)1. 1. In determining the fund’s assets, the department shall not include recoveries under s. 102.29 (1), Stats., unless they are in process of payment and due within 30 days, or vouchers in the process of payment which are not fully credited to the fund’s account.

DWD 80.62(9)(a)2. 2. In determining the fund’s liabilities, the department shall estimate the ultimate reserves without discounting, and shall not include reinsurance recoveries that are less than 60 days overdue.

DWD 80.62(9)(b) (b) If the secretary determines that ultimate liabilities to the fund on known and IBNR claims exceed 85% of the cash balance in the fund, the secretary shall consult with the council on worker’s compensation. If the secretary determines that the fund’s ultimate liabilities exceed the fund’s ultimate assets, or that there is a reasonable likelihood that the fund’s liabilities will exceed the fund’s assets within 3 months, the secretary shall file the certificate of insolvency in s. 102.80 (3) (ag), Stats.

DWD 80.62(10) (10) Temporary reduction or delay of payments from the fund.

DWD 80.62(10)(a) (a) If the secretary files a certificate under s. 102.80 (3) (ag), Stats., the department shall continue to pay compensation under s. 102.81 (1), Stats., on claims reported to the department prior to the date specified in that certificate after which no new claims under s. 102.81 (1), Stats., will be accepted or paid.

DWD 80.62(10)(b) (b) If the cash balance in the fund is not sufficient to pay all compensation or other liabilities due in a timely manner, the department may temporarily reduce or delay payments on claims to employees, dependents of employees, health care providers, vocational rehabilitation specialists and others to whom the fund is liable. To manage the fund’s cash flow, the department may adopt a uniform, pro-rata reduction schedule or it may establish different payment schedules for different types of liabilities. The department may amend its payment schedule as necessary.

DWD 80.62(10)(c) (c) The department shall provide written notice to each person who does not receive timely compensation from the fund which explains the reduced or delayed payment schedule adopted by the department to resolve the cash-flow problem.

DWD 80.62 History History: Cr. Register, July, 1996, No. 487, eff. 8-1-96; CR 03-125: am. (7) (a) 3. Register June 2004 No. 582, eff. 7-1-04; CR 15-030: r. (8) Register October 2015 No. 718, eff. 11-1-15.

DWD 80.65 DWD 80.65 Notice of cancellation, termination, or nonrenewal. Notice of cancellation, termination, or nonrenewal of a policy under ss.102.31 (2) (a) and 102.315 (10), Stats., shall be given in writing to the Wisconsin compensation rating bureau, as defined in s. 626.02 (1), Stats., rather than the department. Whenever the Wisconsin compensation rating bureau receives notice of cancellation, termination, or nonrenewal pursuant to this section, it shall immediately notify the department of cancellation, termination, or nonrenewal.

DWD 80.65 Note Note: Notice of cancellation, termination, or nonrenewal given to the Wisconsin Compensation Rating Bureau can be submitted in electronic formats through facsimile machine transmission, electronic mail, certified mail or by personal service. This note may be updated without rulemaking at any time the means of notification are changed.

DWD 80.65 Note A person may contact the Wisconsin Compensation Rating Bureau by telephone at [phone], by visiting the website at: http://www.wcrb.org, or by writing to the following address:

DWD 80.65 Note Wisconsin Compensation Rating Bureau
P.O. Box 3080
Milwaukee, WI 53201-3080

DWD 80.65 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; CR 03-125: am. Register June 2004 No. 582, eff. 7-1-04; CR 15-030: am. Register October 2015 No. 718, eff. 11-1-15.

DWD 80.67 DWD 80.67 Insurer name change. A worker’s compensation insurer shall notify the department and the Wisconsin compensation rating bureau in writing 30 days before the effective date of a change in its name. The insurer shall comply with the name change requirements in its state of domicile and in the state of Wisconsin. On or before the effective date of an approved name change, the insurer shall notify each of its employers insured under ch. 102, Stats., that the insurer’s name is changed. Insurers shall notify employers by an endorsement to the employer’s existing policy that states the insurer’s new name. The insurer shall file a copy of the endorsement with the Wisconsin compensation rating bureau by personal service, facsimile, or certified mail at the same time that it provides notice to its employers insured under ch. 102, Stats.

DWD 80.67 Note Note: The State of Wisconsin Office of the Commissioner of Insurance requires an advance notice of an insurer name change or reorganization. For further information, contact OCI at [phone] or [phone].

DWD 80.67 History History: Cr. Register, September, 1986, No. 369, eff. 10-1-86; CR 00-181: r. and recr., Register July 2001, No. 547 eff. 8-1-01.

DWD 80.68 DWD 80.68 Payment of benefits under s. 102.59, Stats.

DWD 80.68(1) (1) Payment of benefits under s. 102.59, Stats., shall initially be made to the individual entitled to the benefits at such time as payments of primary compensation by the employer cease to be made or would have been made had there been no payment under s. 102.32 (6m), Stats., unless the preexisting disability and the disability for which primary compensation is being paid combine to result in permanent total disability.

DWD 80.68(2) (2) Payments received by an employee or dependent from an account in a financial institution or from an annuity policy where such account or annuity policy are established through settlement of the claim for primary compensation, shall be considered payments by the employer or insurance carrier.

DWD 80.68(3) (3) Payments under s. 102.59, Stats., shall be on a periodic basis but subject to s. 102.32 (6m) and (7), Stats.

DWD 80.68 Note Note: This rule is adopted to insure the solvency of the work injury supplemental benefit and to insure the protection of dependents as of the date of death of the employee with the preexisting disability.

DWD 80.68 History History: Cr. Register, September, 1986, No. 369, eff. 10-1-86; CR 07-019: am. (1) and (3), Register October 2007 No. 622, eff. 11-1-07.

DWD 80.70 DWD 80.70 Malice or bad faith.

DWD 80.70(1) (1) An employer who unreasonably refuses or unreasonably fails to report an alleged injury to its insurance company providing worker’s compensation coverage, shall be deemed to have acted with malice or bad faith.

DWD 80.70(2) (2) An insurance company or self-insured employer who, without credible evidence which demonstrates that the claim for the payments is fairly debatable, unreasonably fails to make payment of compensation or reasonable and necessary medical expenses, or after having commenced those payments, unreasonably suspends or terminates them, shall be deemed to have acted with malice or in bad faith.

DWD 80.70 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.72 DWD 80.72 Health service fee dispute resolution process.

DWD 80.72(1) (1) Purpose. The purpose of this section is to establish the procedures and requirements for resolving a dispute under s. 102.16 (2), Stats., between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by the health service provider relating to the examination or treatment of an injured worker, and to specify the standards that health service fee data bases must meet for certification by the department.

DWD 80.72(2) (2) Definitions. In this section:

DWD 80.72(2)(a) (a) “ADA” means American dental association.

DWD 80.72(2)(b) (b) “Applicant” means the person requesting certification of a data base.

DWD 80.72(2)(c) (c) “Certified” means approved by the department for use in determining the reasonableness of fees.

DWD 80.72(2)(d) (d) “CPT code” means the American medical association’s 1992 physicians’ current procedural terminology.

DWD 80.72 Note Note: This volume is on file in the offices of the secretary of state and the legislative reference bureau, and in the worker’s compensation division of the department, GEF I, room 161, 201 E. Washington Ave., Madison, Wisconsin. Copies can be obtained from local textbook stores or from the American medical association, order department: OP054192, P.O. Box 10950, Chicago, IL 60601.

DWD 80.72(2)(e) (e) “Data base” means a list of fees for procedures compiled and sorted by CPT code, ICD-9-CM code, ADA code, DRG code, or other similar coding which is systematically collected, assembled, and updated, and which does not include procedures charged under medicare.

DWD 80.72(2)(f) (f) “DRG” means a diagnostic related group established by the federal health care financing administration.

DWD 80.72(2)(g) (g) “Dispute” means a disagreement between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by a health service provider where the insurer or self-insured employer refuses to pay part or all of the fee.

DWD 80.72(2)(h) (h) “Fee” or “health service fee” means the amount charged for a procedure by a health service provider.

DWD 80.72(2)(i) (i) “Formula amount” means the mean fee for a procedure plus 1.4 standard deviations from that mean as shown by data from a certified data base.

DWD 80.72(2)(j) (j) “ICD-9-CM” means the commission on professional and hospital activities’ international classification of diseases, 9th revision, clinical modification.

DWD 80.72 Note Note: This volume is on file in the offices of the secretary of state and the legislative reference bureau, and in the worker’s compensation division of the department, GEF I, room 161, 201 E. Washington Ave., Madison, Wisconsin. Copies can be obtained from local textbook stores, or from superintendent of documents, U.S. government printing office, Washington, D.C., 20402, (stock number 917014000001.

DWD 80.72(2)(k) (k) “Procedure” or “health service procedure” means any treatment of an injured worker under s. 102.42, Stats.

DWD 80.72(2)(L) (L) “Provider” or “health service provider” includes a physician, podiatrist, psychologist, optometrist, chiropractor, dentist, physician’s assistant, advanced practice nurse prescriber, therapist, medical technician, or hospital.

DWD 80.72(2)(m) (m) “Self-insurer” means an employer who has been granted an exemption from the duty to insure under s. 102.28 (2), Stats.

DWD 80.72(3) (3) Justification of disputed fees.

DWD 80.72(3)(a) (a) In a case where liability or the extent of disability is in dispute, an insurer or self-insured employer shall provide written notice of the dispute to the health care provider within 30 days after receiving a completed bill that clearly identifies the provider’s name, address and phone number; the patient–employee; the date of service; and the health service procedure, unless there is good cause for delay in providing notice. In a case where liability or the extent of disability is not in issue, and a health care provider charges a fee which an insurer or self-insurer refuses to pay because it is more than the formula amount, the insurer or self-insurer shall, except as provided in sub. (6) (b), mail or deliver written notice to the provider within 30 days after receiving a completed bill which clearly identifies the provider’s name, address and phone number; the patient-employe; the date of service; the health service procedure; and the amount charged for each procedure. The notice from the insurer or self-insurer to the provider shall specify all of the following:

DWD 80.72(3)(a)1. 1. The name of the patient-employe and the employer;

DWD 80.72(3)(a)2. 2. The date of the procedure in dispute;

DWD 80.72(3)(a)3. 3. The amount charged for the procedure;

DWD 80.72(3)(a)4. 4. The CPT code, ADA code, ICD-9-CM code, DRG code or other certified code for the procedure;

DWD 80.72(3)(a)5. 5. The formula amount for the procedure and the certified data base from which that amount was determined;

DWD 80.72(3)(a)6. 6. The amount of the fee that is in dispute beyond the formula amount;

DWD 80.72(3)(a)7. 7. The provider’s obligation under par. (c), if the fee is beyond the formula amount, to provide the insurer or self-insurer with a written justification for the higher fee, at least 20 days prior to submitting the dispute to the department. The notice must clearly explain that the only justification for a fee more than the formula amount is that the service provided in this particular case is more difficult or more complicated than in the usual case; and

DWD 80.72(3)(a)8. 8. The insurer’s or self-insurer’s obligation under par. (d) to respond within 15 days of receiving the provider’s written justification for charging a fee beyond the formula amount.

DWD 80.72(3)(a)9. 9. That pursuant to s. 102.16 (2) (b), Stats., once the notice required by this subsection is received by a provider, a health service provider may not collect the disputed fee from, or bring an action for collection of the disputed fee against, the employee who received the services for which the fee was charged.

DWD 80.72(3)(b) (b) If the provider and the insurer or self-insurer agree on the facts in sub. (3) (a) 1. to 6., the provider may submit the dispute to the department at any time. If the provider believes there is a factual error in the notice provided by the insurer or self-insurer, it must raise the issue as provided in par. (c).

DWD 80.72(3)(c) (c) If, after receiving notice from the insurer or self-insurer, the provider believes a fee beyond the formula amount is justified, or if it does not agree with the factual information provided in the notice under par. (a), then, at least 20 days prior to submitting a dispute to the department, the provider must submit a written justification to the insurer or self-insurer noting the factual error or explaining the extent to which the service provided in the disputed case was more difficult or more complicated than in the usual case, or both.

DWD 80.72(3)(d) (d) If the provider submits a written justification under par. (c), the insurer or self-insurer has 15 days after receiving the notice to notify the provider that it accepts the provider’s explanation or to explain its continuing refusal to pay the fee. If the insurer or self-insurer accepts the provider’s justification, the fee must be paid in full, or in an amount mutually agreed to by the provider and insurer or self-insurer, within 30 days from the date the insurer or self-insurer received written justification under par. (c).

DWD 80.72(3)(e) (e) If only a portion of the fee is in dispute, the insurer or self-insurer shall, within the 30-day notice period specified in par. (a), pay the remainder of the fee which is not in dispute.

DWD 80.72(4) (4) Submitting disputed fees.

DWD 80.72(4)(a) (a) For the department to determine whether or not a fee is reasonable under s. 102.16 (2), Stats., a provider shall file a written request to the department to resolve the dispute within 6 months after an insurer or self-insurer first refuses to pay as provided in sub. (3) (a), and provide a copy of the request and all attachments to the insurer or self-insured employer.

DWD 80.72(4)(b) (b) A request by a provider shall include copies of all correspondence in its possession related to the fee dispute.

DWD 80.72(4)(c) (c) The department shall notify the insurer or self-insurer when a request to settle the dispute is submitted that the insurer or self-insurer has 20 days to file an answer or a default judgment will be ordered.

DWD 80.72(4)(d) (d) The insurer or self-insurer shall file an answer with the department, and send a copy to the provider, within 20 days from the date of the department’s notice of dispute. The answer shall include:

DWD 80.72(4)(d)1. 1. Copies of any prior correspondence relating to the fee dispute which the provider has not already filed.

DWD 80.72(4)(d)2. 2. Information from a certified data base on fees charged by other providers for comparable services or procedures which clearly demonstrates that the fee in dispute is beyond the formula amount for the service or procedure.

DWD 80.72(4)(d)3. 3. An explanation of why the service provided in the disputed case is not more difficult or complicated than in the usual case.

DWD 80.72(4)(e) (e) The department shall examine the material submitted by all parties and issue its order resolving the dispute within 90 days after receiving the material submitted under par. (d). The department shall send a copy of the order to the provider, the insurer or self-insurer and the employee. If the fee dispute involves a claim for which an application for hearing is filed under s. 102.17, Stats., or an injury for which the insurer or self-insurer disputes the cause of the injury, the extent of disability, or other issues which could result in an application for hearing being filed, the department may delay resolution of the fee dispute until a hearing is held or an order is issued resolving the dispute between the injured employee and the insurer or self-insurer.

DWD 80.72(4)(f) (f) The department may develop and require the use of forms to facilitate the exchange of information.

DWD 80.72(5) (5) Department initiative. The department may initiate resolution of a fee dispute when requested to do so by an injured worker, an insurer or a self-insurer. The department shall direct the parties to follow the process provided for in subs. (3) and (4), except where the department specifically determines that extraordinary circumstances justify some modification to expedite or facilitate a fair resolution of the dispute.

DWD 80.72(6) (6) Interest on late payment.

DWD 80.72(6)(a) (a) Except as provided in par. (b), in addition to any amount paid or awarded in a fee dispute, where an insurer or self-insurer fails to respond as required in subs. (3) and (4) or as directed under sub. (5), the insurer or self-insurer shall pay simple interest on the payment or award to the provider at an annual rate of 12%, to be computed by the insurer or self-insurer, from the date that the insurer or self-insurer first missed a deadline for response, to the date of actual payment to the provider.

DWD 80.72(6)(b) (b) If the insurer or self-insurer notifies the provider within 30 days of receiving a completed bill under sub. (3) (a), that it needs additional documentation from the provider regarding the bill or treatment, the insurer or self-insurer shall have 30 days from the date it receives the provider’s response to this request for additional documentation to comply with the notice requirement in sub. (3) (a). Examples of additional documentation include requests for a narrative description of services provided or medical reports.

DWD 80.72(6)(c) (c) For the purpose of calculating the extent to which any claim is overdue, the date of actual payment is the date on which a draft or other valid instrument which is equivalent to payment is postmarked in the U.S. mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery.

DWD 80.72(7) (7) Certification of data bases.

DWD 80.72(7)(a) (a) Before the department may certify a data base under s. 102.16 (2), Stats., and sub. (8), it shall determine that all of the following apply:

DWD 80.72(7)(a)1. 1. The fees in the data base accurately reflect the amounts charged by providers for procedures rather than the amounts paid to or collected by providers, and do not include any medicare charges.

DWD 80.72(7)(a)2. 2. The information in the data base is compiled and sorted by CPT code, ICD-9-CM code, ADA code, DRG code or other similar coding accepted by the department.

DWD 80.72(7)(a)3. 3. The information in the data base is compiled and sorted into economically similar regions within the state, with the fee based on the location at which the service was provided.

DWD 80.72(7)(a)4. 4. The information in the data base can be presented in a way which clearly indicates the formula amount for each procedure.

DWD 80.72(7)(a)5. 5. The applicant authorizes and assists the department to audit or investigate the accuracy of any statements made in the application for certification by any reasonable method including, if the applicant did not collect or compile the data itself, providing a means for the department to audit or investigate the process used by the person who collected or compiled the data.

DWD 80.72(7)(a)6. 6. The information in the data base is up-dated and published or distributed by other methods at least every 6 months.

DWD 80.72(7)(b) (b) Before the department may certify a data base under s. 102.16 (2), Stats., it shall consider all of the following:

DWD 80.72(7)(b)1. 1. The coverage of the data base, including the number of CPT codes, ICD-9-CM codes or DRGs for which there are data; the number of data entries for each code or DRG; the number of different providers contributing to a code or DRG entry; and the extent to which reliable data exist for injuries most commonly associated with worker’s compensation claims;

DWD 80.72(7)(b)2. 2. The sources from which the data are collected, including the number of different providers, insurers or self-insurers;

DWD 80.72(7)(b)3. 3. The age of the data, and the frequency of the updates in the data;

DWD 80.72(7)(b)4. 4. The method by which the data are compiled, including the method by which mistakes in charges are identified and corrected prior to entry and the extent to which this occurs; and the conditions under which charges reported to the applicant may be excluded and the extent to which this occurs;