Chapter Ins 17

Ins 17.25(18)(a)3. 3. A member of the plan.

Ins 17.25(18)(a)4. 4. The manager or an officer or employee of the plan.

Ins 17.25(18)(b) (b) Paragraph (a) does not apply if the person is judged, in the action, suit or proceeding, to be liable because of willful or criminal misconduct in the performance of the person’s duties under par. (a) 1. to 4.

Ins 17.25(18)(c) (c) Paragraph (a) does not apply to any loss, cost or expense on a policy claim under the plan.

Ins 17.25(18)(d) (d) Indemnification under par. (a) does not exclude any other legal right of the person indemnified.

Ins 17.25(19) (19) Applicability. Each person insured by the plan is subject to this section as it existed on the effective date of the person’s policy. Any change in this section during the policy term applies to the insured as of the renewal date.

Ins 17.25 History History: Emerg. cr. eff. 3-20-75; cr. Register, June, 1975, No. 234, eff. 7-1-75; emerg. am. eff. 7-28-75; emerg. r. and recr. eff. 11-1-75; r. and recr. Register, January, 1976, No. 241, eff. 2-1-76; am. (1) (b), (2), (4) (c), and (5) (a), Register, May, 1976, No. 245, eff. 6-1-76; emerg. am. (4) (b), eff. 6-22-76; am. (1) (b), (2), (4) (b) and (c) and (5) (a), Register, September, 1976, No. 249, eff. 10-1-76; am. (1) (b), (2), (4) (c), (5) (a), (5) (f), (10) (a) and (15), cr. (4) (h), Register, May, 1977, No. 257, eff. 6-1-77; am. (1) (b), (2), (4) (c), (5) (a), (10) (a) and (15), Register, September, 1977, No. 261, eff. 10-1-77; am. (1) (b), (2), (4) (b) and (c), (5) (a) and (f), and (15), Register, May, 1978, No. 269, eff. 6-1-78; am. (7) (b) 1.a., Register, March, 1979, No. 279, eff. 4-1-79; renum. from. Ins 3.35, am. (1) (b), (2), (5) (a) and (10) (a), Register, July, 1979, No. 283, eff. 8-1-79; r. and recr. (5) (a), Register, April, 1980, No. 292, eff. 5-1-80; am. (1) (b), (2), (4) (c), (5) (a), (10) (a), (12) (a) 3. and 4. and (15), r. (12) (a) 11. renum. (12) (a) 5. through 10. and 12. to be 7. through 12. and 13., cr. (12) (a) 5. and 6., Register, May, 1985, No. 353, eff. 6-1-85; emerg. am. (1) (b), (2), (4) (c) and (5) (a) 2., eff. 7-29-86; am. (1) (b), (2), (4) (c) and (5) (a) 2., Register, January, 1987, No. 373, eff. 2-1-87; emerg. am. (1) (b), (2), (4) (c), (5) (a) 3., 4. and 7., (7) (b) 2., 3. and 5., (10) (a), (12) (intro.), (14) (a) (intro.) and 1. and (15), cr. (5) (a) 11., (7m) and (14) (a) 3. and 4., renum. (5) (a) 11., (b) and (7) (b) 1. intro. to be (5) (am), (b) (intro.) and (7) (b) and am., r. (7) (b) 1. a. and b. eff. 2-16-87; am. (1) (b), (2), (4) (c), (5) (a) 3., 4. and 7., (7) (b) 2., 3. and 5., (10) (a), (12) (intro.), (14) (a) (intro.) and 1. and (15), renum. (5) (a) 11., (b) and (7) (b) 1. to be (5) (am), (b) (intro.) and (7) (b) 1. and am., cr. (5) (a) 7m and 11., (b) 1. to 3., (7) (b) 2m. and (14) (a) 3. and 4., r. (7) (b) 1. a. and b., Register, July, 1987, No. 379, eff. 8-1-87; r. (12) (a) 13. and (b) 5., cr. (5) (a) 2m. and (12m), am. (16), Register, February, 1988, No. 386, eff. 3-1-88; r. (4) (g) and (9) (b), renum. (9) (a) to be (9), Register, March, 1988, No. 387, eff. 4-1-88; cr. (10) (cm), Register, April, 1989, No. 400, eff. 5-1-89; emerg. am. (5) (b) 3., cr. (5) (b) 4., eff. 10-16-89; am. (5) (b) 3., cr. (5) (b) 4., Register, March, 1990, No. 411, eff. 4-1-90; am. (1) (a) and (c), (2), (10) (a), (b), (c) and (d), (12) (a) 2. and 3., (14) (a) (intro.) and 4., (b), r. (3), (4) (a), (c), (d), (f) and (h), (5) (am), (d), (e) and (f), (6) (a), (7), (8) (j), (11) (a), (12) (intro.), (a) 4. to 6. intro., b. and c. and 7., (b), (c) 1., 3. and 6., (12m) (c) and (13), r. and recr. (12) (a) 1., (15), (16) and (18), renum. (4) (b) and (e), (5) (a) (intro.) to 11., (5) (b) and (c), (6) (b) and (c), (8) (a) to (i), (9), (11) (b), (12) (a) 6., 8., to 12., (12) (b) 2. and 4. and (17) to be (6) (a) 1. and 2., (5) (intro.) to (m), (3) (d) and (f), (6) (b) 2. and 3., (7), (8) (a), (b) 1. to 4., (8) (a) 3. to 5., (8) (b) 5., (6) (c), (12) (a) 4. to 6., (12) (a) 5. b., (12) (c), (12) (a) 7., (12) (b) 1. and 2., and (6) (d) and am. except (3) (d) 1. to 4., cr. (3) (a) to (c) and (e), (5) (n), (6) (a) (intro.) and (b) 1., (8) (a) (intro.) and 6., (b) (intro.), (12) (b) (intro.) and (19), Register, June, 1990, No. 414, eff. 7-1-90; am. (10) (cm), Register, April, 1991, No. 424, eff. 5-1-91; am. (12m) (c) (intro.), Register, January, 1992, No. 433, eff. 2-1-92; correction in (5) (c) and (n) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1997, No. 498; correction in (12) (a) 3. made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1999, No. 525; emerg. am. (3) (d) 3., renum. (3) (d) 4. to be 5. and cr. (3) (d) 4., eff. 7-1-02; CR 02-035: am. (3) (d) 3., renum. (3) (d) 4. to be (3) (d) 5., cr. (3) (d) 4., Register September 2002 No. 561, eff. 10-1-02; corrections in (5) (c) and (n) made under s. 13.93 (2m) (b) 7., Stats., Register October 2003 No. 574; CR 07-001: am. (12m), Register June 2007 No. 618, eff. 7-1-07; corrections in (5) (c), (n), and (8) (a) 5. made under s. 13.92 (4) (b) 6. and 7., Stats., Register June 2009 No. 642.

Ins 17.25 Note Note: See the table of Appellate Court Citations for Wisconsin appellate cases citing s. Ins 17.25.

Ins 17.26 Ins 17.26 Payments for future medical expenses.

Ins 17.26(1) (1) Purpose. This section implements s. 655.015, Stats.

Ins 17.26(3) (3) Definitions. In this section:

Ins 17.26(3)(a) (a) “Account” means a portion of the fund allocated specifically for the medical expenses of an injured person.

Ins 17.26(3)(b) (b) “Claimant” means the injured person, the individual legally responsible for the injured person’s medical expenses or the injured person’s legal representative.

Ins 17.26(3)(c) (c) “Medical expenses” means charges for medical services, nursing services, medical supplies, drugs and rehabilitation services that are incurred after the date of a settlement, panel award or judgment.

Ins 17.26(4) (4) Administration.

Ins 17.26(4)(a) (a) If a settlement or judgment is subject to s. 655.015, Stats., the insurer or other person responsible for payment shall, within 30 days after the date of the settlement or judgment, pay the fund the amount in excess of $100,000 and shall provide the fund with an executed copy of the document setting forth the terms under which payments for medical expenses are to be made.

Ins 17.26(4)(b) (b) The fund shall credit each account with a proportional share of any interest earned by the fund, based on the remaining value of the account at the time the investment board declares the interest earnings. The fund shall maintain an individual record of each account as provided in s. 16.41, Stats.

Ins 17.26(4)(c) (c) Upon receipt of a claimant’s request for reimbursement of medical expenses, the fund, after determining that the supplies or services provided were necessary and incidental to the injury sustained by the injured person and that the provider of the supplies or services has actually been paid, shall pay the claim from the appropriate account.

Ins 17.26(4)(d) (d)

Ins 17.26(4)(d)1. 1. If the fund is not satisfied that a provider has actually been paid for services or supplies provided to an injured person, the fund may make payments jointly to the claimant and the provider.

Ins 17.26(4)(d)2. 2. A claimant may, in writing, authorize direct payment to a provider.

Ins 17.26(4)(e) (e) The fund shall at least annually report to each claimant the status of the injured person’s account, including the original amount, payments made since the last report and the balance remaining.

Ins 17.26(4)(f) (f) If an injured person dies and there is a balance in his or her account, the balance shall revert to the insurer or other person responsible for establishing the account.

Ins 17.26 History History: Cr. Register, November, 1976, No. 251, eff. 12-1-76; renum. from Ins 3.37, Register, July, 1979, No. 283, eff. 8-1-79; am. (3), r. (4) (b) and (f), renum. (4) (d), (e), (g) and (h) to be (4) (e) (b), (d) and (f) and am., Register, April, 1984, No. 340, eff. 5-1-84; am. (1), (3) (a) to (c) and (4), r. (2), Register, June, 1990, No. 414, eff. 7-1-90; emerg. am. (4) (a), eff. 5-28-96; am. (4) (a), Register, September, 1996, No. 489, eff. 10-1-96.

Ins 17.26 Note Note: See the table of Appellate Court Citations for Wisconsin appellate cases citing s. Ins 17.26.

Ins 17.27 Ins 17.27 Filing of financial report.

Ins 17.27(1) (1) Purpose. This section implements s. 655.27 (3) (b), (4) (d) and (5) (e), Stats., for the purpose of setting standards and techniques for accounting, valuing, reserving and reporting of data relating to the financial transactions of the fund.

Ins 17.27(2) (2) Definitions. In this section:

Ins 17.27(2)(a) (a) “Amounts in the fund,” as used in s. 655.27 (5) (e), Stats., means the sum of cash and invested assets as reported in a financial report under sub. (3).

Ins 17.27(2)(b) (b) “Fiscal year,” as used in s. 655.27 (4) (d), Stats., means a year commencing July 1 and ending June 30.

Ins 17.27(3) (3) Financial reports. The board shall furnish the commissioner with the financial report required by s. 655.27 (4) (d), Stats., within 60 days after the close of each fiscal year. In addition, the board shall furnish the commissioner with quarterly financial reports prepared as of September 30, December 31 and March 31 of each year within 60 days after the close of each reporting period. The board shall prescribe the format for preparing financial reports in accordance with statutory accounting principles for fire and casualty companies. Reserves for reported claims and reserves for incurred but not reported claims shall be maintained on a present value basis with the difference from full value being reported as a contra account to the loss reserve liability. Mediation fund fees collected under s. Ins 17.01 shall be indicated in the financial reports but shall not be regarded as assets or liabilities or otherwise taken into consideration in determining assessment levels to pay claims.

Ins 17.27(4) (4) Selection of actuaries. The board shall select one or more actuaries to assist in determining reserves and setting fees under s. 655.27 (3) (b), Stats. If more than one actuary is selected, the board members named by the Wisconsin medical society and the Wisconsin hospital association shall jointly select the 2nd actuary.

Ins 17.27 History History: Cr. Register, June, 1980, No. 294, eff. 7-1-80; am. (1), (2) (a) and (b) to (4), cr. (2) (intro.), Register, June, 1990, No. 414, eff. 7-1-90.

Ins 17.275 Ins 17.275 Claims information; confidentiality.

Ins 17.275(1) (1) Purpose. This section interprets ss. 19.35 (1) (a), 19.85 (1) (f), 146.82, 655.26 and 655.27 (4) (b), Stats.

Ins 17.275(2) (2) Open records; privileged or confidential fund records. Except as provided in s. 601.427 (7), Stats., records of the fund are subject to subch. II of ch. 19, Stats., and are open to inspection as required under subch. II of ch. 19, Stats. The fund may withhold and retain as confidential any record which may be withheld and retained as confidential under subch. II of ch. 19, Stats., including, but not limited to, a record which may be withheld or which is privileged under any law or the rules of evidence, as attorney work product under the rules of civil procedure, as attorney-client privileged material under s. 905.03, Stats., as a medical record under ss. 146.81 to 146.84, Stats., or as privileged under s. 601.465, Stats.

Ins 17.275(3) (3) Definition. In this section, “confidential claims information” means any document or information relating to a claim against a plan-insured health care provider in the possession of the commissioner, the board or an agent thereof, including claims records of the plan.

Ins 17.275(4) (4) Disclosure. Confidential claims information may be disclosed only as follows:

Ins 17.275(4)(a) (a) To the medical examining board as provided under s. 655.26, Stats.

Ins 17.275(4)(b) (b) As needed by the peer review council, consultants and the board under s. 655.275, Stats., and rules promulgated under that section.

Ins 17.275(4)(c) (c) As provided under s. 804.01, Stats.

Ins 17.275(4)(d) (d) To an individual, organization or agency required by law or designated by the commissioner or board to conduct a management or financial audit.

Ins 17.275(4)(e) (e) With a written authorization from the plan-insured health care provider on whose behalf the claim was defended or paid.

Ins 17.275(4)(f) (f) To the risk manager for the fund, as needed to perform the duties specified in its contract. The risk manager may not disclose confidential claims information to any 3rd party, unless the board expressly authorizes the disclosure. The board may authorize disclosure of patient health care records subject to ss. 146.81 to 146.84, Stats., only as provided in those sections.

Ins 17.275 History History: Cr. Register, March, 1988, No. 387, eff. 4-1-88; cr. (3) (e), Register, June, 1990, No. 414, eff. 7-1-90; cr. (3) (f), Register, May, 1995, No. 473, eff. 6-1-95; am., Register, September, 1999, No. 525, eff. 10-1-99.

Ins 17.275 Note Note: See the table of Appellate Court Citations for Wisconsin appellate cases citing s. Ins 17.275.

Ins 17.28 Ins 17.28 Health care provider fees.

Ins 17.28(1) (1) Purpose. This section implements s. 655.27 (3), Stats.

Ins 17.28(2) (2) Scope. This section applies to fees charged to providers for participation in the fund, but does not apply to fees charged for operation of the mediation system under s. 655.61, Stats.

Ins 17.28(3) (3) Definitions. In this section:

Ins 17.28(3)(a) (a) “Annual fee” means the amount established under sub. (6) for each class or type of provider.

Ins 17.28(3)(b) (b) “Begin operation” means for a provider other than a natural person to start providing health care services in this state.

Ins 17.28(3)(bm) (bm) “Begin practice” means to start practicing in this state as a medical or osteopathic physician or nurse anesthetist or to become ineligible for an exemption from ch. 655, Stats.

Ins 17.28(3)(c) (c) “Class” means a group of physicians whose specialties or types of practice are similar in their degree of exposure to loss. The specialties and types of practice and the applicable Insurance Services Office, Inc., codes included in each fund class are the following:

Ins 17.28(3)(c)1. 1. Class 1:

Ins 17.28(3)(c)2. 2. Class 2:

Ins 17.28(3)(c)3. 3. Class 3:

Ins 17.28(3)(c)4. 4. Class 4:

Ins 17.28(3)(d) (d) “Fiscal year” means each period beginning each July 1 and ending each June 30.

Ins 17.28(3)(e) (e) “Permanently cease operation” means for a provider other than a natural person to stop providing health care services with the intent not to resume providing such services in this state.

Ins 17.28(3)(f) (f) “Permanently cease practice” means to stop practicing as a medical or osteopathic physician or nurse anesthetist with the intent not to resume that type of practice in this state.

Ins 17.28(3)(g) (g) “Primary coverage” means health care liability insurance meeting the requirements of subch. III of ch. 655, Stats.

Ins 17.28(3)(h) (h) “Provider” means a health care provider, as defined in s. 655.001 (8), Stats.

Ins 17.28(3)(hm) (hm) “Resident” means a licensed physician engaged in an approved postgraduate medical education or fellowship program in any specialty specified in par. (c) 1. to 4.

Ins 17.28(3)(i) (i) “Temporarily cease practice” means to stop practicing in this state for any period of time because of the suspension or revocation of a provider’s license, or to stop practicing for at least 90 consecutive days for any other reason.

Ins 17.28(3e) (3e) Primary coverage required. Each provider shall ensure that primary coverage for the provider and the provider’s employees other than employees excluded from fund coverage under par. (b), is in effect on the date the provider begins practice or operation and for all periods during which the provider practices or operates in this state. A provider does not have fund coverage for any of the following:

Ins 17.28(3e)(a) (a) Any period during which primary coverage is not in effect.

Ins 17.28(3e)(b) (b) Any employee who is a health care practitioner under the circumstances described in s. 655.005 (2), Stats.

Ins 17.28(3h) (3h) Supervision and direction. For the purposes of clarifying s. 655.005 (2) (a), Stats., health care services that are “under the direction and supervision of a physician or nurse anesthetist” include, but are not limited to the health care services being provided pursuant to and within the scope of the health care practitioner’s professional license and:

Ins 17.28(3h)(a) (a) The health care practitioner is subject to a quality assurance program, peer review process, or other similar program or process that is implemented for and designed to ensure the provision of competent and quality patient care and that program or process also includes participation by a physician or a nurse anesthetist; or

Ins 17.28(3h)(b) (b) The health care services are provided by the health care practitioner within the scope of standing orders, protocols, procedures or clinical practice guidelines established or approved by a physician or nurse anesthetist.

Ins 17.28(3m) (3m) Exemptions; eligibility. A medical or osteopathic physician licensed under ch. 448, Stats., or a nurse anesthetist licensed under ch. 441, Stats., may claim an exemption from ch. 655, Stats., if at least one of the following conditions applies:

Ins 17.28(3m)(a) (a) The provider will not practice more than 240 hours in the fiscal year.

Ins 17.28(3m)(c) (c) During the fiscal year, the provider will derive more than 50% of the income from his or her practice from outside this state or will attend to more than 50% of his or her patients outside this state.

Ins 17.28(3s) (3s) Late entry to fund.

Ins 17.28(3s)(a) (a) A provider that begins or resumes practice or operation during a fiscal year, has claimed an exemption or has failed to comply with sub. (3e) may obtain fund coverage during a fiscal year by giving the fund advance written notice of the date on which fund coverage should begin.

Ins 17.28(3s)(b) (b) The board may authorize retroactive fund coverage for a provider who submits a timely request for retroactive coverage showing that the failure to procure coverage occurred through no fault of the provider and despite the fact that the provider acted reasonably and in good faith. The provider shall furnish the board with an affidavit describing the necessity for the retroactive coverage and stating that the provider has no notice of any pending claim alleging malpractice or knowledge of a threatened claim or of any occurrence that might give rise to such a claim. The authorization shall be in writing, specifying the effective date of fund coverage.

Ins 17.28(4) (4) Annual fees; billing procedures.

Ins 17.28(4)(a) (a) Definition. In this subsection, “semimonthly period” means the 1st through the 14th day of a month or the 15th day through the end of a month.

Ins 17.28(4)(b) (b) Entry during fiscal year; prorated annual fee. If a provider begins practice or operation or enters the fund under sub. (3s) (b) after the beginning of a fiscal year, the fund shall charge the provider one twenty-fourth of the annual fee for each semimonthly period or part of a semimonthly period from the date fund coverage begins to the next June 30.

Ins 17.28(4)(c) (c) Ceasing practice or operation; refunds. A provider or person acting on the provider’s behalf shall notify the fund in the form specified by the fund if any of the following occurs:

Ins 17.28(4)(c)1. 1. The provider is exempt under sub. (3m) (a) or (c).

Ins 17.28(4)(c)2. 2. The provider is no longer eligible to participate in the fund under s. 655.003 (1) or (3), Stats.

Ins 17.28(4)(c)3. 3. This state is no longer a principal place of practice for the provider.

Ins 17.28(4)(c)4. 4. The provider has temporarily or permanently ceased practice or has ceased operation.

Ins 17.28(4)(c)5. 5. The provider’s classification under sub. (6) has changed.

Ins 17.28(4)(cm) (cm) Eligibility for exemption; refund. If a provider claims an exemption after paying all or part of the annual fee, the fund shall issue a refund equal to one twenty-fourth of the provider’s annual fee for each full semi-monthly period from the date the provider becomes eligible for the exemption to the due date of the next payment. The refund for any past exemption period will be limited to the current fiscal year and the immediate prior fiscal year.

Ins 17.28(4)(cs) (cs) Ineligibility for fund coverage; refund.

Ins 17.28(4)(cs)1. 1. If a provider who has paid all or part of the annual fee is or becomes ineligible to participate in the fund under s. 655.003 (1) or (3), Stats., or because he or she does not practice in this state, the fund shall issue a full refund of any amount the provider paid for fund coverage for which he or she was not eligible.