Chapter Ins 17

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.

Ins 17.35(2m) (2m) Risk retention groups. If the policy is issued by a risk retention group, as defined under s. 600.03 (41e), Stats., each new and renewal application form shall include the following notice in 10-point type:

NOTICE

Under the federal liability risk retention act of 1986 (15 USC 3901 to 3906) the Wisconsin insurance security fund is not available for payment of claims if this risk retention group becomes insolvent. In that event, you will be personally liable for payment of claims up to your limit of liability under s. 655.23 (4), Wis. Stat.

Ins 17.35 Note Note: Subsection (2m) first applies to applications taken on October 1, 1991.

Ins 17.35(3) (3) Permissible exclusions. A policy may exclude coverage, or permit subrogation against or recovery from the insured, for any of the following:

Ins 17.35(3)(a) (a) Criminal acts.

Ins 17.35(3)(b) (b) Intentional sexual acts and other intentional torts.

Ins 17.35(3)(c) (c) Restraint of trade, anti-trust violations and racketeering.

Ins 17.35(3)(d) (d) Defamation.

Ins 17.35(3)(e) (e) Employment, religious, racial, sexual, age and other unlawful discrimination.

Ins 17.35(3)(f) (f) Pollution resulting in injury to a 3rd party.

Ins 17.35(3)(g) (g) Acts that occurred before the effective date of the policy of which the insured was aware or should have been aware.

Ins 17.35(3)(h) (h) Incidents occurring while a provider’s license to practice is suspended, revoked, surrendered or otherwise terminated.

Ins 17.35(3)(i) (i) Criminal and civil fines, forfeitures and other penalties.

Ins 17.35(3)(j) (j) Punitive and exemplary damages.

Ins 17.35(3)(k) (k) Liability of the insured covered by other insurance, such as worker’s compensation, automobile, fire or general liability.

Ins 17.35(3)(L) (L) 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.

Ins 17.35(3)(m) (m) Liability of others assumed by the insured under a contract or agreement.

Ins 17.35(3)(n) (n) Any other exclusion which the commissioner determines is not inconsistent with the coverage required under sub. (2).

Ins 17.35(4) (4) Deductibles. If a policy includes a deductible or coinsurance clause, the insurer is responsible for payment of the total amount of indemnity up to the limits under s. 655.23 (4), Stats., but may recoup the amount of the deductible or coinsurance from the insured after the insurer’s payment obligation is satisfied.

Ins 17.35 Note Note: Subsection (2b) applies to all claims made health care liability insurance policies for which certificates have been filed with the patients compensation fund, whether issued before, on or after July 1, 1994.

Ins 17.35 History History: Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. cr. (2m), eff. 7-1-91; cr. (2m), Register, July, 1991, No. 427, eff. 8-1-91; cr. (2e), Register, September, 1993, No. 453, eff. 10-1-93; cr. (2b), Register, June, 1994, No. 462, eff. 7-1-94; emerg. r. and recr. (2b) (b) and cr. (2b) (c) and (d), eff. 6-1-98; r. and recr. (2b) (b) and cr. (2b) (c) and (d), Register, August, 1998, No. 512, eff. 9-1-98.

Ins 17.35 Note Note: See the table of Appellate Court Citations for Wisconsin appellate cases citing s. Ins 17.35.

Ins 17.40 Ins 17.40 Notice to fund of filing of action outside this state.

Ins 17.40(1) (1) Purpose. This section implements s. 655.27 (5) (a) and (b), Stats., relating to the requirement that the fund be notified of an action filed outside this state within 60 days of service of process on the health care provider or the employee of the health care provider and relating to the duty of the insurer or self-insurer of the provider to provide an adequate defense of the fund and act in good faith and in a fiduciary relationship with respect to any claim affecting the fund.

Ins 17.40(2) (2) Primary insurer or self-insurer to give notice to fund. A primary insurer or self-insurer for a health care provider or employee of a health care provider shall notify the fund in writing within 60 days of the insurer or self-insurer’s first notice of the filing of an action outside this state alleging medical malpractice against its insured health care provider or the employee of its insured health care provider or within 60 days of service of process on the insured health care provider or employee thereof, whichever is later. The notice shall provide at a minimum the names and addresses of the parties plaintiff and defendant, the court in which the action is filed, the case number, and copies, if available, of the complaint in the action and answer filed on behalf of the defendant provider.

Ins 17.40(3) (3) Failure to give notice. If the primary insurer or self-insurer fails to give notice to the fund as required in sub. (2), the board shall deny fund coverage for the action filed outside this state unless the primary insurer demonstrates, and the board finds, all of the following:

Ins 17.40(3)(a) (a) The fund was not prejudiced by the failure to give notice as required, and

Ins 17.40(3)(b) (b) It was not reasonably possible to give notice within the time limit.

Ins 17.40(4) (4) Failure to act in good faith. If the board denies coverage pursuant to sub. (3), then failure to give notice to the fund of the filing of an action outside this state as required in sub. (2) constitutes a failure to act in good faith on the part of the insurer or self-insurer in violation of s. 655.27 (5) (b), Stats.

Ins 17.40 History History: CR 03-038: cr. Register October 2003 No. 574, eff. 11-1-03.