Rule-Making Notices (Hearing Notices)

The statutes all relate to the commissioner's authority to promulgate rules regulating the business of insurance as it relates to Medicare supplement and Medicare replacement insurance products. Specifically, ss. 601.41, 625.16, 628.38, 632.73, 632.76, and 632.81, Wis. Stats., permit the commissioner to promulgate rules regulating various aspects of Medicare supplement and Medicare replacement products while ss. 628.34, and 628.38, Wis. Stats., authorize the commissioner to promulgate rules governing disclosure requirements and unfair marketing practices for disability policies, which includes Medicare supplement and Medicare replacement products.

Related statutes or rules

The Centers for Medicare & Medicaid Services (CMS) required the National Association of Insurance Commissioners, (NAIC) to make conforming changes to the Medigap model regulation by incorporating changes necessary to implement requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA Public Law 110-223) and delegated the function of implementing the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA, Public Law 110-175). The GINA law requires states to adopt necessary changes by September 24, 2009 and to have regulations in place for MIPPA by June 1, 2010. States are required to adopt the NAIC model revision in order to continue to regulate the Medigap marketplace.

CMS delegates enforcement of MIPPA and GINA and the underlying Medicare supplement and Medicare replacement insurance products to the states that have incorporated into the states insurance regulations, the NAIC Model Act. To date Wisconsin has passed several of Model Acts through statute and most frequently administrative rule governing the Medicare supplement and Medicare replacement products. In Wisconsin Medicare supplement and Medicare replacement products are currently regulated through s. Ins 3.39, Wis. Adm. Code, inclusive of the appendices. The proposed rule modifies s. Ins 3.39, Wis. Adm. Code, and several appendices in order to comply with the MIPPA and the NAIC requirements, to the extent necessary, and updates the appendices to reflect current requirements.

Plain language analysis and summary of the proposed rule

The proposed rule implements modifications delineated by the NAIC Medicare Supplement Insurance Minimum Standards Model Act that includes modifications to comply with both GINA and MIPPA. Medigap policies are policies purchased by Medicare beneficiaries to cover Medicare deductibles, co-insurance and selected services that Medicare does not cover. Medicare establishes eligibility rules, benefits and coverage limits. The proposed rule incorporates the NAIC Model Act into Wisconsin's current Medicare supplement and Medicare replacement rules.

The proposed rule contains a new paragraph that specifically implements the GINA requirements as they relate to Medicare supplement or replacement plans. The proposed rule updates requirements relating to the submission of form filings and advertisements to the office including the repeal of Appendices currently numbered 2 and 3 and modification of s. Ins 3.39 (15).

The proposed rule implements the changes to the Medicare supplement benefits that are to be effective by June 1, 2010 in accordance with MIPPA. Specifically, although Wisconsin is a waived state, the office is proposing to incorporate the benefits contained within the federal newly created standardized plans labeled “M" and “N", into two new rider options. These riders will create a Medicare Part A 50% deductible with that has no out-of-pocket maximum limitation and will create a Medicare Part B 100% deductible with co-payment requirements for office and emergency room visits.

While the federal standardized plans eliminate the preventative health care coverage, the proposed rule retains those benefits. Also, although the standardized plans are first incorporating a hospice care benefit while the office has had such benefit for over 3 years and will retain the benefit into the June 1, 2010 benefits. The proposed rule includes a newly created paragraph to address insurers' use of new or innovative benefits as contained in the NAIC Model Act.

For clarity, the proposed rule renumbers existing appendices to include newly created appendices 2 through 6 for the Medicare supplement plans that are effective on or after June 1, 2010. The new appendices follow product lines with one appendix dedicated to premium information and various disclosures. Parallel cites are proposed to ease use of the new regulations by creating ss. Ins 3.39 (4s), (5m) and (30m).

The proposed rule preserves the regulatory oversight of products primarily sold to Wisconsin seniors and maintains rigorous standards for disclosures benefits, consumer rights and marketing practices. In furthering this oversight, the proposed rule includes specific reference to MIPPA that requires insurers that are marketing and selling insurance products to Wisconsin seniors enrolled in Medicare Advantage to fill in “gaps" that those products comply with the Medicare supplement regulations.

Comparison with federal regulations

The NAIC Model Act implements MIPPA, GINA and previous federal Medicare supplement and Medicare replacement regulations. CMS permitted NAIC a narrow period to time to amend its model act and permitted states to implement the updated NAIC Model Act to retain the regulatory oversight of Medicare supplement and replacement insurance for the modified products that are to be effective on or after June 1, 2010. The department of labor and CMS require implementation of the requirements contained in GINA by July 1, 2009.

Comparison of rules in adjacent states

Iowa:

Iowa makes available to its Medicare beneficiaries Medigap policies A through J as required by the Medicare reform provisions under OBRA 1990 and the prior NAIC Model Regulation. Iowa will have to amend its regulations to create new Medigap plans M and N, and to incorporate the hospice care benefit as well as the new and innovative benefit requirements as required by MIPPA. Iowa will also have to comply by implementing the GINA requirements.

Illinois:

Illinois makes available to its Medicare beneficiaries Medigap policies A through J as required by the Medicare reform provisions under OBRA 1990 and the prior NAIC Model Regulation. Illinois will have to amend its regulations to create new Medigap plans M and N, and to incorporate the hospice care benefit as well as the new and innovative benefit requirements as required by MIPPA. Illinois will also have to comply by implementing the GINA requirements.

Minnesota:

Minnesota, like Wisconsin, received a waiver from the federal standardization regulations. Minnesota makes available to its Medicare beneficiaries two standardized policies (basic and extended basic). Minnesota will have to amend its Medicare supplement regulations to create two cost-sharing plans. It also will have to amend its regulations to include the prohibitions and other changes under GINA.

Michigan:

Michigan makes available to its Medicare beneficiaries Medigap policies A through J as required by the Medicare reform provisions under OBRA 1990 and the prior NAIC Model Regulation. Michigan will have to amend its regulations to create new Medigap plans M and N, and to incorporate the hospice care benefit as well as the new and innovative benefit requirements as required by MIPPA. Michigan will also have to comply by implementing the GINA requirements.

Summary of factual data and analytical methodologies

OCI review of complaints, NAIC models, insurer's financial information CMS data indicates that Medicare currently covers 40 million Americans, 814,183 of whom are Wisconsin residents as of 2004. An estimated 27 percent of Medicare beneficiaries are covered by Medigap policies.

Information collected by the OCI indicates that 75 insurance companies offer Medicare supplement, Medicare cost and Medicare select (Medigap) policies to Wisconsin consumers eligible for Medicare due to age or disability. In addition, there are 25 insurance companies that have Medigap policyholders although the companies no longer market Medigap coverage in Wisconsin. At year end 2007, there were 247,142 Wisconsin Medicare beneficiaries with Medigap policies. The majority of these Wisconsin Medicare beneficiaries have Medigap policies that will be affected by the Medigap reforms under the MIPPA and GINA.

A 2000 report by CMS, Office of Research, Development, and Information, based on 2007 Medicare data indicates that Medicare paid 54-56% of the health care expenses of persons 65 or over, and private health insurance, including Medicare supplement policies paid 16% of these health care expenses. The report indicated that overall annual medical expenses in 2005 per Medicare beneficiaries equaled $6,697.

Analysis and supporting documentation used to determine effect on small businesses

OCI reviewed financial statements and other reports filed by life, accident and health insurers and determined that none qualifies as a small business. Wisconsin currently has 75 insurance companies offering Medicare supplement, Medicare cost and Medicare select insurance plans. None of these insurers meet the definition of a small business under s. 227.114, Wis. Stats.

Small Business Impact

This rule does not have a significant impact on regulated small businesses as defined in s. 227.114 (1), Wis. Stat. OCI maintains a database of all licensed insurers in Wisconsin. The database includes information submitted by the companies related to premium revenue and employment. In an examination of this database, OCI identified that 75 insurance companies offer Medicare supplement, Medicare cost and Medicare select (Medigap) policies to Wisconsin consumers eligible for Medicare due to age or disability and none of those companies qualify by definition as a small business. In addition, 25 insurance companies have Medigap policyholders although the companies no longer market Medigap coverage in Wisconsin. Again, none of these 25 companies qualifies by definition as a small business.

This rule does not impose any additional requirements on small businesses.

Pursuant to s. 227.114, Stats., the proposed rule may have an effect on small businesses. The initial regulatory flexibility analysis is as follows:

Initial regulatory flexibility analysis

Types of small businesses affected

Insurance agents, LSHO, Town Mutuals, Small Insurers, etc.

Description of reporting and bookkeeping procedures required

None beyond those currently required.

Description of professional skills required:

None beyond those currently required.

OCI small business regulatory coordinator

The OCI small business coordinator is Eileen Mallow and may be reached at phone number [phone] or at email address [e-mail]

Fiscal Estimate

There will be no state or local government fiscal effect.

The proposed rule will not significantly impact the private sector. Insurers offering Medigap policies (Medicare supplement, Medicare cost, and Medicare select policies) will incur costs associated with developing new Medigap policies and marketing materials, mailing riders and explanatory materials to existing policyholders and reprogramming claim processing systems. However, these costs are offset by the insurers' ability to continue offering Medigap policies to Wisconsin consumers.

Agency Contact Person and Copies of Proposed Rules

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the Web site at: http://oci.wi.gov/ocirules.htm or by contacting:

Inger Williams, OCI Services Section, at:

Phone:   [phone]

Email:   [e-mail]

Address:   125 South Webster Street — 2nd Floor
  Madison WI 53703-3474

Mail:   PO Box 7873, Madison, WI 53707-7873

Web site:   http://oci.wi.gov/ocirules.htm

Notice of Hearings

Natural Resources

Environmental Protection — Solid Waste Management, Chs. NR 500—

rulemaking_notices CR 08-111 CR 08-111

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a) and 289.05, 289.06, 289.07 and 299.11, Stats., the Department of Natural Resources will hold a public hearing on the creation of Chapter NR 528, Wis. Adm. Code, relating to the management of accumulated sediment from storm water management structures.

Hearing Information

The hearings will be held on:

Date and Time:	Location:
February 11, 2009 Wednesday at 11:00 a.m.	Wausau Room Marathon County Public Library 300 N. 1st Street Wausau, WI 54403 [Parking is available in the JC Penney ramp, kitty-corner from library at the intersection of E. Washington and N. 1st Street]
February 12, 2009 Thursday at 11:00 a.m.	Room G09 Natural Resources Bldg. (GEF 2) 101 South Webster Street Madison, WI 53707

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please contact Jack Connelly in writing at DNR, Bureau of Waste and Materials Management, P.O. Box 7921, Madison, WI 53707; by E-mail to Johnston.Connelly@ Wisconsin.gov; or by calling [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order No. WA-22-08.)

Submission of Written Comments and Copies of Proposed Rules

Written comments on the proposed rule may be submitted via U.S. mail to Mr. Jack Connelly, Bureau of Waste and Materials Management, P.O. Box 7921, Madison, WI 53707 or by e-mail to [e-mail]. Comments may be submitted until February 20, 2009. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. If you do not have Internet access, a personal copy of the proposed rule and supporting documents, including the fiscal estimate may be obtained from Jack Connelly, Bureau of Waste and Materials Management, P.O. Box 7921, Madison, WI 53707 or by calling [phone].

Analysis Prepared by Department of Natural Resources

Statutes interpreted

Sections 289.43, 289.91 and 299.11, Stats.

Statutory authority

Sections 227.11 (2) (a), 289.05, 289.06, 289.07 and 299.11, Stats.

Related statute or rule

None

Plain language analysis

With an ever-increasing volume of sediment to be managed in the cleaning of storm water and sediment control structures, coupled with a need to maximize the effectiveness of reduced department staff resources, it is necessary to develop an innovative and proactive regulatory approach. This proposed rule would create a framework of self regulation for the management of sediment obtained when cleaning storm water sediment control structures. The proposed rule would place the department in an oversight role, thereby minimizing and targeting uses of scarce staff resources. Further, the proposed rule provides a reasonable, safe and consistent approach in managing end uses of accumulated sediment. The department has worked with a Technical Advisory Committee (TAC) to obtain input and advice from affected stakeholders.

Comparison with federal regulations

There are no federal regulations pertaining explicitly to the management of sediment accumulated in storm water and sediment control structures. The sediment is generated as a consequence of compliance with the storm water discharge permit program of the federal Clean Water Act.

Comparison with rules in adjacent states

Adjacent states have not developed specific rules to address the material that accumulates in storm water management structures. However, they do have rules to address other dredge materials and they use those rules to answer questions about where to go with accumulated sediment in storm water ponds.

Iowa has a permit by rule approach to land application of any material. This is currently a catch-all for all material disposal and they are considering going to designating beneficial uses. Under the permit by rule approach, if the material meets a set of criteria they do not need a permit for disposal. The criteria include testing for petroleum content and following setback parameters similar to the Federal EPA 503 Biosolids Rule which establishes standards for the use and disposal of municipal sewage sludge. This approach is similar to Wisconsin's intent to have a rule that provides enough information for the user to self certify that they have used or disposed of the material properly. Iowa has found that the permit by rule approach results in very few contacts or questions from the public.

Minnesota also has a general management approach for dredged material that the accumulated sediment from storm water ponds would fall into. The state recognizes that it would be beneficial to customize the rules to address accumulated sediment from storm water. Similar to the rule proposed here, dredged material can be handled differently depending on the amount of sand in the material, how much material is being handled, what testing suggests about the contaminant levels and the potential disposal sites. For example, in Minnesota, no permit is needed for disposal of less than 3,000 cubic yards with 93% or more sands. The rule proposed here establishes a de minimus of 100 cubic yards for material with 85% or more sands. For all other sediment Minnesota requires an extensive sediment characterization of the pollutant levels in the material and this information determines the management options and whether the disposal qualifies for a general or individual permit. The general permit sets thresholds and criteria that if met, allows a streamlined permit process. The rule proposed here would not require a permit at all and the sediment manager would only contact the department if they were concerned about the results of the sediment characterization and had questions about what end use option to select. Minnesota also encourages consideration of use or reuse options rather than disposal in a landfill.

Michigan considers the material in storm water ponds and catch basin sumps to be process water once it comes time to clean it out. When the liquid portion is separated from the solid material it is covered under a set of rules that governs liquid industrial waste. In some cases it can be discharged to the sanitary sewer system, if approved by the local sewer authority, but other options are available. The solids are handled as a solid waste under a separate set of rules. Testing of certain parameters is required before disposing of the material although the most likely disposal is to a landfill. The transporter of the material has to meet applicable transporter requirements.

Illinois has limited guidance on what to do with sediment that accumulates in storm water ponds. If the contents are strictly storm water and there is no septic or sewage mixed in, then it can be disposed of anywhere in an upland location, but not in the floodway. No sampling or any other testing or evaluation is required. Storm water pond sediment is not considered a solid waste unless the agency is aware of, or notified that, a spill of some contaminant occurred in the drainage basin. Anyone removing sediment from a storm water pond will be cautioned that they must check with the Army Corps of Engineers if they are close to a waterway to see if a permit is required.

Summary of factual data and analytical methodologies

There is an increasing number storm water and sediment control structures coming on-line as a result of more comprehensive storm water control requirements imposed by the USEPA's revisions to the storm water discharge permit program of the Clean Water Act. The department, in accord with its responsibilities as a delegated program, then promulgated revisions to ch. NR 216, effective August 1, 2004. To address the increase in both the number of structures and the volume of accumulated sediment, the department has developed a streamlined approach to sediment management featuring self-regulation. The department has identified stakeholders who will be affected by the proposed rule and formed a Technical Advisory Committee (TAC) comprised of representatives of these organizations and interests. The department has met with this TAC five times in 2007 and 2008 to obtain their input and advice in writing rule language for this streamlined approach to sediment management.

Analysis and supporting documents used to determine the effect on small business

The proposed rule for sediment management, ch. NR 528, is expected to reduce costs to small businesses. Currently, compliance with the department's existing rules, ch. NR 216, Wis. Adm. Code, is resulting in an increase in the number of storm water practices for small business. Routine maintenance of these sediment control structures generates accumulated sediment. Under existing solid waste rules, the NR 500 series, a person responsible for cleaning out a sedimentation pond may either transport the sediment to a licensed landfill or apply to the solid waste program for an exemption. By eliminating the need to apply for an exemption and removing the need for the department to approve the end use chosen by small business, the costs to small business will be reduced.

The proposed rule is also expected to reduce costs to small business by simplifying and clarifying the process and thereby providing known expectations for small business. Further, because the department's role is greatly reduced, costs owing to any delays that result from the current departmental review process for sediment management proposals is eliminated. Because of the proposed self regulation process, project timing would be completely under the control of the small business.

Likewise, because submittal of reports to the department is eliminated, costs normally associated with submitting these reports are eliminated. Instead, the self-certification process provides a logical flow through the sediment evaluation and management process and all data and records are maintained by the small business. Further, costs associated with sediment sampling and lab analysis are reduced under the proposed rule because the number of parameters is greatly reduced in most cases. Even when more analysis is warranted because indications of contamination are detected, it is likely that the simplified requirements in the proposed rule will still reduce sediment evaluation costs. Current department rules do not specify how the sediment must be characterized so staff can be inconsistent in what they require and in an effort to be prudent, often choose an extensive list of compounds for which to analyze. The proposed rule includes a specific list that is considerably shorter and thus reduces sampling costs.

Small Business Impact

The rule revisions will have a neutral to net positive effect on small businesses since they would otherwise have to comply with existing requirements. Under existing rules a sediment manager, when cleaning out a storm water management structure, must either take the sediment to a licensed landfill or apply with the Waste and Materials Management program for an exemption. This proposed rule would eliminate the requirement to apply for an exemption when the sediment manager determines that the sediment is clean enough to take to an end use site. Further, the proposed rule provides other end use options that will usually be less expensive than costs associated with the transportation distance to the licensed landfill and the tipping fees at the landfill.

Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. As the DNR's position of Small Business Regulatory Coordinator is currently vacant, if you have questions regarding the impact to small businesses you may contact Jack Connelly by E-mail at Johnston.Connelly@ Wisconsin.gov or by phone at [phone].