LRBs0444/1
TJD:cjs
2017 - 2018 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 2,
TO ASSEMBLY BILL 365
December 4, 2018 - Offered by Senators Feyen and Fitzgerald.
AB365-SSA2,1,3 1An Act to amend 40.51 (8), 40.51 (8m), 66.0137 (4), 120.13 (2) (g) and 185.983
2(1) (intro.); and to create 609.847 and 632.728 of the statutes; relating to:
3coverage of individuals with preexisting conditions.
Analysis by the Legislative Reference Bureau
Currently, the federal Patient Protection and Affordable Care Act generally
allows premium rates to be based only on individual or family coverage, rating area,
age, and tobacco use; requires group and individual health insurance policies to
accept every employer and individual that applies for coverage, known as
guaranteed issue, and renew health insurance coverage at the option of the sponsor
or individual; and prohibits health insurance policies from imposing preexisting
condition exclusions. If those requirements and prohibitions of the Affordable Care
Act are no longer enforceable or no longer preempt state law, all of the following apply
under this substitute amendment: every individual health insurance policy must
accept every individual in this state who applies for coverage and every group health
insurance policy must accept every employer in this state that applies for coverage,
regardless of whether any individual or employee has a preexisting condition; a
health insurance policy may restrict enrollment in coverage described to open or
special enrollment periods; the commissioner of insurance must ensure a statewide
open enrollment period allowing individuals, including individuals who do not have
coverage, to enroll in coverage; health insurance policies must provide special

enrollment periods for certain qualifying events described in federal law; a health
insurance policy offered on the individual or small employer market or a self-insured
health plan may not vary premium rates for a specific policy or plan except on the
basis of whether the policy or plan covers an individual or a family, area in the state,
age, and tobacco use; a group health benefit plan, including a self-insured
governmental health plan, may not impose a preexisting condition exclusion; and an
individual health insurance policy may not reduce or deny a claim or loss incurred
or disability commencing under the policy on the ground that a disease or physical
condition existed prior to the effective date of coverage. Certain grandfathered and
transitional health insurance policies that are exempt from some requirements of
the Affordable Care Act, including the premium rate requirements, are exempt from
the premium rate requirements under the substitute amendment. Under the
substitute amendment, an individual health insurance policy is known as a
disability insurance policy.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB365-SSA2,1 1Section 1. 40.51 (8) of the statutes is amended to read:
AB365-SSA2,2,62 40.51 (8) Every health care coverage plan offered by the state under sub. (6)
3shall comply with ss. 631.89, 631.90, 631.93 (2), 631.95, 632.72 (2), 632.728, 632.746
4(1) to (8) and (10), 632.747, 632.748, 632.798, 632.83, 632.835, 632.85, 632.853,
5632.855, 632.867, 632.87 (3) to (6), 632.885, 632.89, 632.895 (5m) and (8) to (17), and
6632.896.
AB365-SSA2,2 7Section 2. 40.51 (8m) of the statutes is amended to read:
AB365-SSA2,2,118 40.51 (8m) Every health care coverage plan offered by the group insurance
9board under sub. (7) shall comply with ss. 631.95, 632.728, 632.746 (1) to (8) and (10),
10632.747, 632.748, 632.798, 632.83, 632.835, 632.85, 632.853, 632.855, 632.867,
11632.885, 632.89, and 632.895 (11) to (17).
AB365-SSA2,3 12Section 3. 66.0137 (4) of the statutes, as affected by 2017 Wisconsin Act 30,
13is amended to read:
AB365-SSA2,3,7
166.0137 (4) Self-insured health plans. If a city, including a 1st class city, or
2a village provides health care benefits under its home rule power, or if a town
3provides health care benefits, to its officers and employees on a self-insured basis,
4the self-insured plan shall comply with ss. 49.493 (3) (d), 631.89, 631.90, 631.93 (2),
5632.728, 632.746 (10) (a) 2. and (b) 2., 632.747 (3), 632.798, 632.85, 632.853, 632.855,
6632.867, 632.87 (4) to (6), 632.885, 632.89, 632.895 (9) to (17), 632.896, and 767.513
7(4).
AB365-SSA2,4 8Section 4. 120.13 (2) (g) of the statutes, as affected by 2017 Wisconsin Act 30,
9is amended to read:
AB365-SSA2,3,1310 120.13 (2) (g) Every self-insured plan under par. (b) shall comply with ss.
1149.493 (3) (d), 631.89, 631.90, 631.93 (2), 632.728, 632.746 (10) (a) 2. and (b) 2.,
12632.747 (3), 632.798, 632.85, 632.853, 632.855, 632.867, 632.87 (4) to (6), 632.885,
13632.89, 632.895 (9) to (17), 632.896, and 767.513 (4).
AB365-SSA2,5 14Section 5. 185.983 (1) (intro.) of the statutes, as affected by 2017 Wisconsin
15Act 30
, is amended to read:
AB365-SSA2,3,2316 185.983 (1) (intro.) Every voluntary nonprofit health care plan operated by a
17cooperative association organized under s. 185.981 shall be exempt from chs. 600 to
18646, with the exception of ss. 601.04, 601.13, 601.31, 601.41, 601.42, 601.43, 601.44,
19601.45, 611.26, 611.67, 619.04, 623.11, 623.12, 628.34 (10), 631.17, 631.89, 631.93,
20631.95, 632.72 (2), 632.728, 632.745 to 632.749, 632.775, 632.79, 632.795, 632.798,
21632.85, 632.853, 632.855, 632.867, 632.87 (2) to (6), 632.885, 632.89, 632.895 (5) and
22(8) to (17), 632.896, and 632.897 (10) and chs. 609, 620, 630, 635, 645, and 646, but
23the sponsoring association shall:
AB365-SSA2,6 24Section 6. 609.847 of the statutes is created to read:
AB365-SSA2,4,3
1609.847 Preexisting condition discrimination prohibited. Limited
2service health organizations, preferred provider plans, and defined network plans
3are subject to s. 632.728.
AB365-SSA2,7 4Section 7. 632.728 of the statutes is created to read:
AB365-SSA2,4,6 5632.728 Coverage of individuals with preexisting conditions; rating.
6(1) Definitions. In this section:
AB365-SSA2,4,77 (a) “Disability insurance policy” has the meaning given in s. 632.895 (1) (a).
AB365-SSA2,4,88 (b) “Self-insured health plan” has the meaning given in s. 632.85 (1) (c).
AB365-SSA2,4,99 (c) “Small employer” has the meaning given in s. 635.02 (7).
AB365-SSA2,4,15 10(2) Access to coverage. Every individual disability insurance policy shall
11accept every individual in this state who applies for coverage and every group
12disability insurance policy shall accept every employer in this state that applies for
13coverage, regardless of whether any individual or employee has a preexisting
14condition. A disability insurance policy may restrict enrollment in coverage
15described in this subsection to open or special enrollment periods under sub. (4).
AB365-SSA2,4,18 16(3) Premium rate variation. (a) A disability insurance policy offered on the
17individual or small employer market or a self-insured health plan may vary
18premium rates for a specific policy or plan based only on the following considerations:
AB365-SSA2,4,1919 1. Whether the policy or plan covers an individual or a family.
AB365-SSA2,4,2020 2. Rating area in the state, as established by the commissioner.
AB365-SSA2,4,2321 3. Age, except that the rate may not vary by more than 3 to 1 for adults over
22the age groups and the age bands shall be consistent with recommendations of the
23National Association of Insurance Commissioners.
AB365-SSA2,4,2424 4. Tobacco use, except that the rate may not vary by more than 1.5 to 1.
AB365-SSA2,5,4
1(b) A disability insurance policy that is considered a grandfathered health plan
2under 42 USC 18011 or has transitional status granted by the federal department
3of health and human services and the commissioner is not required to comply with
4par. (a).
AB365-SSA2,5,8 5(4) Enrollment periods. (a) The commissioner shall ensure that every
6individual disability insurance policy has open enrollment during a statewide open
7enrollment period to allow individuals, including individuals who do not have
8coverage, to enroll in coverage.
AB365-SSA2,5,109 (b) Every disability insurance policy shall provide special enrollment periods
10for qualifying events under 29 USC 1163 and 26 USC 9801 (f).
AB365-SSA2,5,13 11(5) Preexisting condition exclusion. (a) A group disability insurance policy
12or a self-insured health plan may not impose a preexisting condition exclusion for
13any time on a participant or beneficiary under the policy or plan.
AB365-SSA2,5,1914 (b) No claim or loss incurred or disability under an individual disability
15insurance policy may be reduced or denied on the ground that a disease or physical
16condition existed prior to the effective date of coverage. An individual disability
17insurance policy may not define a preexisting condition more restrictively than a
18condition, whether physical or mental, regardless of the cause of the condition, for
19which medical advice, diagnosis, care, or treatment was recommended or received.
AB365-SSA2,6,2 20(6) Applicability. This section applies only if provisions of the federal Patient
21Protection and Affordable Care Act, P.L. 111-148, as amended, under 42 USC
22300gg-1
to 300gg-4 are no longer enforceable or no longer preempt state law relating
23to individual or group health insurance policies. If this section applies, this section
24supersedes any conflicting provision of ss. 625.12 (1) or (2), 625.15 (1), 628.34 (3),
25632.746, 632.76, 632.795 (4) (a), 632.896 (4), or 632.897 (11) (a) or any other

1conflicting provision in chs. 600 to 655 to the extent this section conflicts with that
2provision.
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