The fund may require any provider to report, at the times and in the manner prescribed by the fund, any information necessary for the determination of a fee specified under sub. (6)
For purposes of sub. (6) (k)
, a partnership or corporation shall report the number of partners, shareholders and employed physicians and nurse anesthetists on July 1 of the previous fiscal year.
This subsection implements s. 655.27 (3) (bg) 1.
, Stats., requiring the establishment of an automatic increase in a provider's fund fee based on loss and expense experience.
The following tables shall be used in making the determinations required under s. Ins 17.285
as to the percentage increase in a provider's fund fee:
Ins 17.28 History
Cr. Register, June, 1980, No. 294
, emerg. r. and recr. (6) and am. (6a), eff. 7-1-00; r. and recr. (6) and am. (6a), Register, August, 2000, No. 536
, eff. 9-1-00; emerg. r. and recr. (6) and am. (6a), eff. 7-1-01; CR 01-035
: r. and recr. (6) and am. (6a), Register September 2001 No. 549
, eff. 10-1-01; emerg. r. and recr. (6), r. (6a), eff. 7-1-02; CR 02-035
: r. and recr. (6), r. (6a), Register September 2002 No. 561
, eff. 10-1-02; CR 03-039
: r. and recr. (6) Register October 2003 No. 574
, eff. 11-1-03; CR 04-032
: r. and recr. (6) Register January 2005 No. 589
, eff. 2-1-05; emerg. r. and recr. (6), eff. 7-1-05; CR 05-028
: r. and recr. (6) Register October 2005 No. 598
, eff. 11-1-05; CR 06-002
: am. (3) (c) 1. and 2. and r. and recr. (6) Register June 2006 No. 606
, eff. 7-1-06; CR 07-002
: am. (6), Register June 2007 No. 618
, eff. 7-1-07; CR 07-002
: am. (6e), Register June 2007 No. 618
, eff. 7-1-07; CR 08-006
: am. (6) (intro.), (k) 2., (L) 2., (m) 2., (n) 3. and (q) 2. Register June 2008 No. 630
, eff. 7-1-08; CR 09-004
: am. (3) (c), r. and recr. (6) Register June 2009 No. 642
, eff. 7-1-09; correction in (6) (o) made under s. 13.92 (4) (b) 7.
, Stats., Register June 2009 No. 642
; CR 09-055
: cr. (3h) Register March 2010 No. 651
, eff. 4-1-10; EmR1020
: emerg. r. and recr. eff. 6-15-10; CR 10-065
: r. and recr. Register November 2010 No. 659
, eff. 12-1-10; correction in (6) (o) made under s. 13.92 (4) (b) 7.
, Stats., Register November 2010 No. 659
: emerg. am. (3) (c), r. and recr. (6) eff. 6-10-11; CR 11-015
: am. (3) (c), r. and recr. (6) and Register August 2011 No. 668
, eff. 9-1-11; EmR1306
: emerg. am. (3) (c) 1. to 3., r. and recr. (6), eff. 6-3-13; CR 13-044
: am. (3) (c) 1. to 3., r. and recr. (6) Register June 2014 No. 702
, eff. 7-1-14; CR 19-119 am. (3) (c) 1. to 3., (4) (f) Register July 2020 No. 775, eff. 8-1-20.
“Aggregate indemnity" means the total amount attributable to an individual provider that is paid or owing to or on behalf of claimants for all closed claims arising out of one incident or course of conduct, including amounts held by the fund under s. 655.015
, Stats. “Aggregate indemnity" does not include any expenses paid in the defense of the claim.
“Closed claim" means a medical malpractice claim against a provider, or a claim against an employee of a health care provider for which the provider is vicariously liable, for which there has been either of the following:
A final determination based on a settlement, award or judgment that indemnity will be paid to or on behalf of a claimant.
A payment to a claimant by the provider or another person on the provider's behalf.
“Provider," when used without further qualification, means a health care provider subject to ch. 655
, Stats., who is a natural person. “Provider" does not include a hospital or other facility or entity that provides health care services.
“Review period" means the 5-year period ending with the date of the first payment on the most recent closed claim reported under s. 655.26
, Stats., for a specific provider.
(2m) Time for reporting.
In reporting claims paid under s. 655.26
, Stats., each insurer or self-insurer shall report the required information by the 15th day of the month following the date on which there has been a final determination of the aggregate indemnity to be paid to or on behalf of any claimant.
(2s) Information for provider.
Upon receipt of a report under sub. (2m)
, the council shall mail to the provider who is the subject of the report all of the following:
A copy of the report, with a statement that the provider may contact the insurer that filed the report if the provider believes it contains inaccurate information.
A statement that the council may use its authority under s. 146.82 (2) (a) 5.
, Stats., to obtain any patient health care records necessary for use in making determinations under this section.
A request that the provider sign and return to the council an authorization for release of information form, authorizing the provider's insurer to provide the council with relevant factual information about the closed claim for use in making determinations under this section. A copy of the form shall be enclosed with the mailing.
If necessary, a request that the provider verify the council's closed claim record and furnish the council with information on any additional closed claims not known to the council that have been paid by or on behalf of the provider during the review period.
Notice that if the provider does not comply with a request under par. (c)
within 40 days after the date of the request, the provider is in violation of s. 601.42 (4)
, Stats., and may be subject to a forfeiture of up to $1,000 for each week of continued violation, as provided in s. 601.64 (3)
(3) Determination of need for review.
Based on reports received under sub. (2m)
and any additional closed claims reported in response to a request under sub. (2s) (d)
, the council, using the tables under ss. Ins 17.25 (12m) (c)
and 17.28 (6s) (c)
, shall determine when a provider has, during a review period, accumulated enough closed claims and aggregate indemnity to consider the imposition of a surcharge.
When the council makes a determination under sub. (3)
, it may request any of the following:
From the provider's insurer, relevant factual information about each closed claim subject to review. This subdivision applies only if the provider has complied with the request under sub. (2s) (c)
A request under par. (a)
shall be in writing and shall specify a reasonable time for response. Each person receiving a request shall provide the council with the records and information requested, unless the person no longer maintains or has access to them. If a person is unable to comply with a request, the person shall notify the council in writing of the reason for the inability to comply.
The council shall notify a provider for whom a determination is made under sub. (3)
that, after reviewing the patient health care records, consultants' opinions and other relevant information submitted by the provider and the provider's insurer, the council may recommend that a surcharge be imposed on the provider's plan premium, fund fee or both, and that the surcharge may be reduced or eliminated following a review as provided in this section. The notice shall include a description of the procedures specified in this section and a statement that the provider may submit in writing relevant information about any closed claim involved in the review and a description of mitigating circumstances that may reduce the future risk to the plan, the fund or both.
The council or a single council member may conduct a preliminary review of the records and information relating to each of a provider's closed claims. If the council or council member is able to determine, without a consultant, that the provider met the appropriate standard of care with respect to any closed claim, the council shall not refer that closed claim to a consultant and shall not use that closed claim in determining whether to impose a surcharge on that provider.
Unless a determination under par. (a)
reduces the number of closed claims and aggregate indemnity so that the provider is no longer subject to the imposition of a surcharge, the council shall refer all records and information relating to closed claims subject to review, including records and information in the custody of the plan and the fund, to one or more specialists as provided in s. 655.275 (5) (b)
Each specialist consulted under par. (b)
shall provide the council with a written opinion as to whether the provider met the appropriate standard of care with respect to each closed claim reviewed.
At least 30 days before the meeting at which the council will decide whether or not to recommend that a surcharge should be imposed on a provider, the council shall notify the provider of the date of the meeting and furnish the provider with a copy of the consultant's opinions and a list of any other documents on which the recommendation will be based. The council shall make all documents available to the provider upon request for inspection and copying, as provided under s. 19.35
In reviewing a closed claim, the council or a consultant may consider any relevant information except information from a juror who participated in a civil action for damages arising out of an incident under review. The council or a consultant may consult with any person except a juror, interview the provider, employees of the provider or other persons involved in an incident or request the provider to furnish additional information or records.
The council, after taking into consideration all available information, shall decide whether each closed claim reviewed should be counted in recommending whether to impose a surcharge on the provider.
If the total number of closed claims which the council determines should be included and the aggregate indemnity attributable to those claims would be sufficient to require the imposition of a surcharge under s. Ins 17.25 (12m) (c)
, 17.28 (6s) (c)
or both, the council shall prepare a written report for the board recommending the surcharge that should be imposed. The report shall include the factual basis for the determination on each incident involved in the review and a description of any mitigating circumstances.
If the council determines that one or more closed claims should not be counted and, as a result, the total number of closed claims remaining and the aggregate indemnity attributable to those claims is not sufficient to require the imposition of a surcharge, the council shall prepare a written report for the board recommending that no surcharge should be imposed. The report shall include a brief summary of the basis for the recommendation.
The council shall furnish the provider with a copy of its report and recommendation to the board and with notice of the right to a hearing as provided in sub. (9)
A provider has the right to a hearing under ch. 227
, Stats., and ch. Ins 5
on the council's recommendation, if the provider requests a hearing within 30 days after receiving the notice under sub. (7) (c)
The reports of the consultant and any other documents relied on by the council in making its recommendation to the board are admissible in evidence at a hearing under this section.
Notice of the hearing examiner's proposed decision shall inform the provider that he or she may submit to the board written objections and arguments regarding the proposed findings of fact, conclusions of law and decision within 20 days after the date of the notice.
(10) Final decision; judicial review.
The board shall make the final decision on the imposition of a surcharge. The final decision is reviewable by the circuit court as provided under ch. 227
A surcharge imposed on a provider's plan premium, fund fee or both after a final decision by the board takes effect on the next billing date and remains in effect during any period of judicial review.
If judicial review results in the imposition of no surcharge or a reduced surcharge, the plan, the fund or both shall refund the excess amount collected from the provider or apply a credit to the provider's next plan premium or fund fee bill or both.
A surcharge remains in effect for 36 months. The percentage imposed shall be reduced by 50% for the 2nd 12 months and by 75% for the 3rd 12 months, if the provider does not accumulate any additional closed claims before the expiration of the surcharge. The time periods specified in this paragraph are tolled on the date a provider stops practicing in this state and remain tolled until the provider resumes practice in this state.
If the provider accumulates additional closed claims while a surcharge is in effect, the provider is subject to the higher of the following:
The surcharge determined by the board following a new review of the provider's claims record under sub. (5)
If the provider is a physician who changes from one class to another class specified in s. Ins 17.25 (12m) (c)
or 17.28 (6s) (c)
while a surcharge is in effect, the percentage imposed by the final decision of the board shall be applied to the plan premium, fund fee or both for the physician's new class effective on the date the class change occurs.
(12) Request from private insurer.
If the council receives a request for a recommendation under s. 655.275 (5) (a) 3.
, Stats., from a private insurer, the council shall follow the procedures specified in subs. (3)
and notify the private insurer and the provider of the determination it would make under sub. (5) (f)
if the provider's primary insurer were the plan. A provider is not entitled to a hearing on any determination reported under this subsection.
The final decision of the board and all information and records relating to the review procedure are the work product of the board and are confidential.
(14) Member and consultant compensation.
Council members and consultants shall be paid $250 per meeting attended or $250 per report filed by a consultant based on the consultant's review of a file under s. 655.275 (5) (b)
Ins 17.285 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.
This section implements s. 655.27 (2)
, Stats., relating to contracting for claim services for the fund.
The board shall establish the criteria for the selection of the servicing agent prior to the expiration of each contract term.
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.
The servicing agent shall perform all of the following functions:
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.
Contracting for annuity payments as part of structured settlements under guidelines adopted by the board.
Negotiating to settlement all claims made against the fund except in cases where this responsibility is retained by the claims committee of the board.
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.
Reviewing court orders, verdicts and judgments and making recommendations on appeals.
Ins 17.29 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.
Peer review council assessments. Ins 17.30(1)(1)
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)