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Ins 17.29Servicing agent.
(1)Purpose. This section implements s. 655.27 (2), Stats., relating to contracting for claim services for the fund.
(2)Criteria. The board shall establish the criteria for the selection of the servicing agent prior to the expiration of each contract term.
(3)Selection. The commissioner, with the approval of the board, shall select a servicing agent through the competitive negotiation process.
(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.
(5)The servicing agent shall perform all of the following functions:
(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.
(b) Establishing and revising case reserves.
(c) Contracting for annuity payments as part of structured settlements under guidelines adopted by the board.
(d) Investigating and evaluating claims.
(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.
(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.
(g) Reviewing court orders, verdicts and judgments and making recommendations on appeals.
(h) All other functions specified in the contract.
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 17.30Peer review council assessments.
(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.
(2)Assessments.
(a) The following fees shall be assessed annually beginning with fiscal year 1986-87:
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.
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.
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.
(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.
(3)Payment. Each assessment under sub. (2) shall be paid within 30 days after the billing date.
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 17.35Primary coverage; requirements; permissible exclusions; deductibles.
(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.
(2)Required coverage. To qualify for approval under s. 631.20, Stats., a policy shall at a minimum provide all of the following:
(a) Coverage for providing or failing to provide health care services to a patient.
(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.
(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.
(d) Indemnity limits of not less than the amounts specified in s. 655.23 (4), Stats.
(e) Coverage for supplemental payments in addition to the indemnity limits, including attorney fees, litigation expenses, costs and interest.
(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.
(g) If the policy is a claims-made policy:
1. A guarantee that the insured can purchase an unlimited extended reporting endorsement upon cancellation or nonrenewal of the policy.
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.
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.
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.
(2b)Aggregate limits; unlimited extended reporting endorsements.
(a) This subsection interprets and implements s. 655.23 (4), Stats.
(b) Highest aggregate limit applies.
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.
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.
(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:
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.
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.
(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.
(2e)Requirements for group coverage.
(a) In this section, “provider” means a health care provider, as defined in s. 655.001 (8), Stats.
(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:
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:
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.
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.
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.
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.
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.
(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.
Note: Subsection (2m) first applies to applications taken on October 1, 1991.
(3)Permissible exclusions. A policy may exclude coverage, or permit subrogation against or recovery from the insured, for any of the following:
(a) Criminal acts.
(b) Intentional sexual acts and other intentional torts.
(c) Restraint of trade, anti-trust violations and racketeering.
(d) Defamation.
(e) Employment, religious, racial, sexual, age and other unlawful discrimination.
(f) Pollution resulting in injury to a 3rd party.
(g) Acts that occurred before the effective date of the policy of which the insured was aware or should have been aware.
(h) Incidents occurring while a provider’s license to practice is suspended, revoked, surrendered or otherwise terminated.
(i) Criminal and civil fines, forfeitures and other penalties.
(j) Punitive and exemplary damages.
(k) Liability of the insured covered by other insurance, such as worker’s compensation, automobile, fire or general liability.
(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.
(m) Liability of others assumed by the insured under a contract or agreement.
(n) Any other exclusion which the commissioner determines is not inconsistent with the coverage required under sub. (2).
(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.
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.
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.
Note: See the table of Appellate Court Citations for Wisconsin appellate cases citing s. Ins 17.35.
Ins 17.40Notice to fund of filing of action outside this state.
(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.
(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.
(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:
(a) The fund was not prejudiced by the failure to give notice as required, and
(b) It was not reasonably possible to give notice within the time limit.
(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.
History: CR 03-038: cr. Register October 2003 No. 574, eff. 11-1-03.
Ins 17.50Self-insured plans for health care providers.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.