Chapter Ins 5

Ins 5.10(2) (2) A health care provider is not entitled to a contested case proceeding to resolve an issue regarding coverage by the Wisconsin health care liability insurance plan, patients compensation fund or both. Any such issue shall be resolved by civil litigation.

Ins 5.10 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.11 Ins 5.11 Petition; response; effect.

Ins 5.11(1) (1) Contents.

Ins 5.11(1)(a) (a) A petition for a hearing need not be in any particular form, but shall be in writing and shall include all of the following:

Ins 5.11(1)(a)1. 1. The name and address of the petitioner.

Ins 5.11(1)(a)2. 2. The date of the petition.

Ins 5.11(1)(a)3. 3. Any of the following:

Ins 5.11(1)(a)3.a. a. The case number of the order that adversely affects the petitioner and an explanation of why the petitioner believes the order should be withdrawn or modified.

Ins 5.11(1)(a)3.b. b. A statement of how the petitioner is adversely affected by a decision of the office, board, plan, fund or council, a reference to any legal deficiency in the decision and the date on which the petitioner received notice of the decision.

Ins 5.11(1)(a)3.c. c. If the petition relates to a denial by the office of the petitioner’s application for a license, a statement of why the petitioner believes the denial should be modified or rescinded.

Ins 5.11(1)(a)3.d. d. If the petition relates to a form filing disapproval, a statement of why the petitioner believes the form should be approved.

Ins 5.11(1)(a)4. 4. If an attorney will appear on behalf of the petitioner, the attorney’s name and address.

Ins 5.11(2) (2) Response. After receipt of a petition, the office shall take one of the following actions:

Ins 5.11(2)(a) (a) Schedule the matter for hearing by issuing a notice of hearing under s. Ins 5.12.

Ins 5.11(2)(b) (b) If the petition is not timely filed, notify the petitioner that the order is final because the petition was not filed within the specified time period.

Ins 5.11(2)(c) (c) If the petition does not satisfy the requirements of sub. (1) (a), notify the petitioner that the order is final because of the inadequacy of the petition or, in the case of an unrepresented individual, refer the matter to the administrative law judge who shall notify the petitioner in writing what additional information is needed to complete or clarify the petition before the matter can be scheduled for hearing.

Ins 5.11(2)(d) (d) If neither the commissioner, a board or an official or employee of the office designated by the commissioner or a board will act as administrative law judge, refer the petition to the person who will act as administrative law judge for appropriate action under pars. (a) to (c).

Ins 5.11(3) (3) Effect. A petition for a hearing on an order under ss. 601.41 (4) (a) and 601.63, Stats., does not stay or modify the order, but the administrative law judge may, upon a motion by the respondent, suspend the order as provided under s. 601.63 (4), Stats.

Ins 5.11 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

subch. V of ch. Ins 5 Subchapter V — Notice of Hearing Pleadings; Form and Filing of Documents

Ins 5.12 Ins 5.12 Notice of hearing.

Ins 5.12(1) (1) Form. The office or administrative law judge shall serve on each named party in a contested case a notice of hearing which shall include all of the following:

Ins 5.12(1)(a) (a) The title, in the form prescribed in s. Ins 5.17 (1) (d), and the case number of the contested case.

Ins 5.12(1)(b) (b) The name and address of each party. In the case of a person licensed by the office, the latest address on file with the office shall be conclusively presumed to be the person’s correct address.

Ins 5.12(1)(c) (c) The date, time and place scheduled for a prehearing conference under s. 227.44 (4), Stats.

Ins 5.12(1)(d) (d) The name of the administrative law judge.

Ins 5.12(1)(e) (e) The class of the contested case under s. 227.01 (3), Stats.

Ins 5.12(1)(f) (f) The statutory authority under which the contested case will be conducted.

Ins 5.12(1)(g) (g) The purpose of the hearing.

Ins 5.12(1)(h) (h) The matter to be decided.

Ins 5.12(1)(i) (i) The date, time and place scheduled for the hearing.

Ins 5.12(1)(j) (j) If the hearing is a class 2 proceeding, the allegations in the form specified in sub. (2), or in the alternative, the notice of hearing may incorporate by reference an order under s. Ins 5.08.

Ins 5.12(1)(k) (k) The date by which the respondent must submit an answer if an answer is required.

Ins 5.12(1)(L) (L) The date the notice of hearing is issued.

Ins 5.12(1)(m) (m) The signature of the attorney assigned to the contested case by the office, or the signature of the administrative law judge if no attorney is assigned by the office.

Ins 5.12(1)(n) (n) A statement of the possible consequences of failing to answer or appear, as provided in s. Ins 5.21.

Ins 5.12(2) (2) Allegations.

Ins 5.12(2)(a) (a) Except as provided in sub. (1) (j), each notice of hearing in a class 2 proceeding shall include allegations of the facts constituting the basis for the proceeding. If continuing conduct is alleged, the allegations shall state its general nature and the approximate time covered. If one or more individual incidents are alleged, each one shall be alleged with sufficient particularity to enable the respondent to deny, admit or defend it.

Ins 5.12(2)(b) (b) Each notice of hearing shall specify the statute or rule alleged to have been violated by the conduct alleged.

Ins 5.12 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.13 Ins 5.13 Answer.

Ins 5.13(1) (1) Answer required. Each named respondent required to file an answer shall answer the notice of hearing by the specified time, unless additional time is allowed by stipulation of the parties or the administrative law judge, for good cause, allows a respondent additional time to answer or to amend the answer. The answer shall be signed by the respondent or by an attorney representing the respondent. If the respondent is a corporation, limited liability company, partnership, cooperative or other association, the answer may be signed by any of its officers or employees.

Ins 5.13(2) (2) Contents.

Ins 5.13(2)(a) (a) An answer need not be in any particular form but shall include all of the following:

Ins 5.13(2)(a)1. 1. The case number designated in the notice of hearing.

Ins 5.13(2)(a)2. 2. The date of the answer.

Ins 5.13(2)(a)3. 3. A specific denial of each material allegation of fact or law which the respondent controverts. A denial shall meet the substance of the allegation denied. If the respondent intends in good faith to deny only a part or qualification of an allegation, the respondent shall admit as much of the allegation as is true and material and shall deny only the remainder.

Ins 5.13(2)(a)4. 4. If applicable, a statement that the respondent is without knowledge or information sufficient to form a belief as to the truth of a specified allegation. This statement has the effect of a denial.

Ins 5.13(2)(a)5. 5. A statement of any matter constituting a defense, affirmative defense or mitigation of the matter charged which the respondent wishes to have considered.

Ins 5.13(2)(b) (b) Notwithstanding par. (a), the administrative law judge may accept a timely written communication from an unrepresented respondent as a sufficient answer, if the communication provides the administrative law judge with sufficient information to determine the matters specified under par. (a). If the answer is insufficient, the administrative law judge may order a respondent to file a sufficient answer within a specified time period.

Ins 5.13(2)(c) (c) Each material allegation not controverted in an answer filed within the specified time shall be taken as true. Any new matter set forth under par. (a) 5. is deemed controverted without service of a reply.

Ins 5.13(2)(d) (d) A respondent’s failure to raise an issue in an answer constitutes waiver of the issue, unless the administrative law judge allows the respondent to amend the answer under s. Ins 5.15 (2).

Ins 5.13 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.15 Ins 5.15 Amendment of pleadings.

Ins 5.15(1) (1) Section 802.09 (1) to (4), Stats., applies in contested cases under this chapter.

Ins 5.15(2) (2) The administrative law judge may permit a party to amend an answer or pleading at any time during a contested case. The administrative law judge may deny a motion to amend if the amendment would unduly delay or disrupt the proceeding or would constitute a significant injustice to any party.

Ins 5.15 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.17 Ins 5.17 Papers; identification; form; filing; service.

Ins 5.17(1) (1) Papers captioned. Except as otherwise permitted by the administrative law judge, each party shall, to the extent practicable, caption each pleading, notice, motion, brief, stipulation, decision, order and other paper filed in a contested case with all of the following:

Ins 5.17(1)(a) (a)

Ins 5.17(1)(a)1. 1. If the contested case arises under ch. Ins 17, the heading,“Board of the Patients Compensation Fund.”

Ins 5.17(1)(a)3. 3. In any other case, the heading, “Commissioner of Insurance.”

Ins 5.17(1)(b) (b) The name of the paper.

Ins 5.17(1)(c) (c) The legal file number assigned to the contested case.

Ins 5.17(1)(d) (d) The title of the contested case in the form, “In the Matter of . . .” followed by one of the following:

Ins 5.17(1)(d)1. 1. The name and designation of the petitioner in a class 1 proceeding.

Ins 5.17(1)(d)2. 2. The name and designation of each respondent in a class 2 proceeding.

Ins 5.17(1)(d)3. 3. The name and designation of the petitioner and the name and designation of one of the following respondents in a class 3 proceeding:

Ins 5.17(1)(d)3.a. a. The Wisconsin compensation rating bureau in a contested case arising under s. 626.31 (4), Stats., and s. Ins 5.09 (4) or s. 102.31 (4), Stats., and s. Ins 5.09 (5).

Ins 5.17(1)(d)3.b. b. The Wisconsin insurance plan in a contested case arising under ss. Ins 4.10 (16) and 5.09 (6).

Ins 5.17(1)(d)3.c. c. The Wisconsin automobile insurance plan in a contested case arising under ss. Ins 3.49 (3) (d) 1. and 5.09 (7).

Ins 5.17(1)(d)3.d. d. The Wisconsin health care liability insurance plan, the patients compensation fund or both in a contested case arising under ss. Ins 5.10 (1) (a) or (c) and 17.24 (3).

Ins 5.17(1)(d)3.e. e. The Wisconsin health care liability insurance plan in a contested case arising under ss. Ins 5.10 (1) (b) and 17.25 (16).

Ins 5.17(1)(d)3.f. f. The patients compensation fund peer review council in a contested case arising under ss. Ins 5.10 (1) (c) and 17.285 (9).

Ins 5.17(2) (2) Form. Except as otherwise permitted or ordered by the administrative law judge, each paper filed shall comply with all of the following:

Ins 5.17(2)(a) (a) It shall be printed or typewritten on only one side of 8-1/2 by 11 inch paper.

Ins 5.17(2)(b) (b) It shall be signed by the party, by the party’s attorney or, if the party is a corporation, limited liability company, partnership, cooperative or other association, by any of its officers or employees. The name and mailing address shall be printed or typewritten immediately after the signature.

Ins 5.17(3) (3) Filing; service.

Ins 5.17(3)(a) (a) Filing of a paper is complete upon its receipt by the office or the administrative law judge before 4:30 p.m. on any business day.

Ins 5.17(3)(b) (b) Whenever a party files a paper in a contested case, that party shall, on the same date, serve a copy on every other party.

Ins 5.17(3)(c) (c) By filing a paper in a contested case, the filing party certifies that he or she has served a copy on every other party as required by par. (b). No other affidavit of mailing or service is required.

Ins 5.17(3)(d) (d) If any party claims not to have received a copy of any filed paper, an affidavit of mailing constitutes presumptive proof of service.

Ins 5.17(3)(e) (e) Mailing by the office to a person regulated by the office at the latest mailing address the person has on file with the office constitutes presumptive proof of service.

Ins 5.17(3)(f) (f) Section 801.14 (2), Stats., shall govern the method and completion of service of papers. Documents exceeding 15 pages in length may not be filed with the office or administrative law judge by facsimile transmission.

Ins 5.17(3)(g) (g) Section 801.15 (5), Stats., does not apply to proceedings under this chapter.

Ins 5.17(4) (4) Copies to administrative law judge. If the office or a board, plan, fund or council is not a party to a contested case, each party shall furnish the administrative law judge with a copy of each paper served on the other parties except papers served in connection with discovery.

Ins 5.17(5) (5) Address. Unless otherwise ordered by the administrative law judge, the address for serving and filing documents with the office, the PCF Board or the administrative law judge is: Office of the Commissioner of Insurance Attn: Legal Unit, 125 South Webster Street Floor 2, P. O. Box 7873, Madison, WI 53707-7873. Facsimile transmission number: 608-264-6228.

Ins 5.17 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; correction in (5) made under s. 13.93 (2m) (b) 6., Stats., Register, February, 1999, No. 518; CR 04-131: am. (5) Register June 2005 No. 594, eff. 7-1-05; CR 09-022: am. (3) (e) Register August 2009 No. 644, eff. 9-1-09; CR 18-092: r. (1) (a) 2., am. (5) Register March 2020 No. 771, eff. 4-1-20.