The deadline for submitting comments is 4:00 p.m. on the 14th day after the date for the hearing stated in this Notice of Hearing.
Copies of Proposed Rule and Fiscal Estimate
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: (608) 264-8110
Address: 125 South Webster Street
2nd Floor, Madison WI 53703-3474
Mail: PO Box 7873, Madison, WI 53707-7873
Analysis Prepared by the Office of the Commissioner of Insurance
Statutes interpreted
Statutory authority
Explanation of agency authority
2009 Wisconsin Act 28 amended the existing independent review definitions and procedures and incorporated two new triggering events for independent review rights and reporting requirements. Newly created provisions include new definitions of coverage denial determinations, preexisting condition exclusion denial and rescission determinations. The Act also created independent review eligibility for preexisting condition exclusion denial determinations and rescissions. The commissioner must render a determination that at least one independent review organization has completed the certification process and is able to effectively provide independent reviews for coverage denial determinations.
Related statutes or rules
Chapter
Ins 18 subch.
I and
II, Wis. Adm. Code.
Plain language analysis and summary of the proposed rule
The proposed rule implements
2009 Wis. Act 28 that expanded existing independent review rights for Wisconsin insureds. The proposed rule amends the existing rule to include the newly created statutory terms of coverage denial determination and preexisting condition exclusion denial determination. As with the amended statute, the rule is modified by replacing the term “adverse determination and experimental treatment determination" with the more inclusive term “coverage denial determination" throughout ch.
Ins 18, subch. III.
The commissioner is directed in s.
632.853 (8) (b), Stats., to determine that at least one independent review organization has been certified that can effectively provide independent review of preexisting condition exclusion denial determinations and rescissions. In order to make the determination, the proposed rule clarifies what types of denials are eligible under preexisting condition exclusion denial determination reviews and the type of expertise independent review organizations need to render determinations. The proposed rule requires independent review organizations to utilize the expertise of state licensed lawyers and certified actuaries when appropriate. The lawyers and actuaries must be current in their credentialing or licensure and can assist the independent review organization as an advisor or participant on the review panel at the discretion of the organization.
The proposed rule also modifies a portion of ch.
Ins 18, subch. I and II to reflect that insureds not only have a right to independent review but also the grievance process established by insurers. This is a new right for persons that have had a policy rescinded or coverage denied as preexisting. The modifications clarify what is not subject to a grievance or independent review, specifically that administrative issues are not eligible for independent review. The proposed rule also clarifies that when an insurer and insured dispute whether an issue is eligible for independent review, that dispute is eligible for review.
Additionally, the proposed rule includes amended reference that depending upon the type of issue under independent review that the determination may be binding on the insurer and insured. The proposed rule updates the compendium that independent review organizations may use to reflect name or source changes and creates legal resources as a new source of information that can be utilized by the independent review organizations.
Finally, the proposed rule parallels implementation of the new preexisting condition denial and rescission determinations that was available when independent review was first implemented. For eligible preexisting condition coverage denial and rescission determinations that occur after January 1, 2010 the date of the notice from the commissioner that he has certified the availability of an independent review organization to review preexisting condition and rescission issues, insureds will have 4 months to request an independent review. Once the commissioner has published notice that he has certified the availability of an independent review organization to review preexisting condition and rescission issues, insureds will have 4 months to file requests for independent review from the date of the preexisting condition exclusion denial or rescission determination by the insurer or from the date of receipt of notice of the grievance panel decision, whichever is later.
Comparison with federal regulations
There are no existing or proposed federal regulations addressing access to independent review organizations for preexisting conditions and rescissions.
Comparison of rules in adjacent states
Illinois:
In 2000 Illinois enacted the managed care reform and patients right act 215 ILCS 134, initiating external review for insured enrolled in health maintenance organizations a right to external review of medical necessity determinations. On January 5, 2010, Illinois enacted the health carrier external review act that broadens the right to external review to all Illinois residents enrolled in health insurance plans under 215 ILCS 180. The review is limited to adverse determinations and does not include review of preexisting condition denials or rescissions.
Iowa:
Effective January 1, 2000, Iowa enacted a right to external review arising from medical necessity determinations at Iowa Code section 514J. On January 1, 2009, Iowa extended external review to long-term care insurance benefit trigger determinations. Iowa Code section 514G.110. Iowa law does not include external review for preexisting condition denials or rescission determinations.
Michigan:
Effective October 1, 2000, Michigan offers external review for adverse determinations based upon medical necessity that are unresolved internally by the plan. 2000 PA 251, MCL 550.1911
Minnesota:
Effective 2000 Minnesota enacted law that provider external review relating to medical necessity determinations from managed care plans and indemnity carriers. Minn. Stat. 72A.327. The law does not include external review for preexisting condition denials or rescission determinations and assumes denials arise from utilization review only.
Summary of factual data and analytical methodologies
The commissioner created a working group to assist in the development of the proposed rule. The working group included representatives from the insurance industry, independent review organizations, consumer advocates and the public and staffed by the office including the managed care specialist whose duties include the oversight of independent review organizations. Meetings were held monthly between September and December. The working group considered information regarding the number of complaints the office receives annually relating to preexisting condition exclusions and rescissions when developing its recommendation to the commissioner. In addition, the consumer representatives provided current case law and issues seen from constituents.
The working group unanimously made its recommendations to the commissioner and those recommendations are reflected in the proposed rule.
Analysis and supporting documents used to determine the effect on small businesses
The office reviewed the number and type of complaints relating to preexisting condition exclusion denials and rescissions. Annually there are less than 10 rescissions in the state. Although more preexisting condition exclusion denials occur the frequency is still very low. The independent review organizations are certified by the commissioner's designee to conduct independent reviews in the state and several are small businesses, however the additional cost, if any, will be primarily borne by large insurers not the independent review organizations. The proposed rule places few additional requirements on the independent review organizations and in clarifying what is and is not eligible for reviews, the costs incurred will be limited. Finally, it was noted during the rule development process at the working group that most independent review organizations already have access to lawyers as needed so there is no additional cost associated with the proposed requirement.
Small Business Impact
This rule will have little or no effect on small businesses.
Small business regulatory coordinator
The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266-7843 or at email address
eileen.mallow@wisconsin.gov
Fiscal Estimate
State fiscal effect
None.
Local government fiscal effect
None.
Private sector fiscal effect
None.
Agency Contact Person
Inger Williams, OCI Services Section
Phone: (608) 264-8110
Address: 125 South Webster Street,
2nd Floor, Madison WI 53703-3474
Mail: PO Box 7873
Madison, WI 53707-7873
Notice of Hearing
Natural Resources
Fish, Game, etc., Chs.
NR 1—
NOTICE IS HEREBY GIVEN that pursuant to sections
23.09 (2) (intro),
23.091,
23.11 (1),
23.22 (2) (a) and
(b) 6.,
23.28 (3),
27.01 (2) (j),
29.014 (1),
29.039 (1) 29.041, and
227.11 (2) (a), Stats., the Department of Natural Resources will hold a public hearing on proposed revisions to Chapter
NR 40, Wis. Adm. Code, relating to the identification, classification and control of invasive species. The proposed revisions are “housekeeping" in nature.
Hearing Information
The hearing will be held:
March 11, 2010 Room G-09
Thursday Wis. Natural Resources Bldg.
at 10:00 a.m. (GEF 2), 101 S. Webster Street
Madison, Wisconsin
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 call Ms. Kelly Kearns at (608) 267-5066 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Submittal of Written Comments
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted by U.S. mail to Ms. Kelly Kearns, Bureau of Endangered Resources, Department of Natural Resources, PO Box 7921, Madison, WI 53707-7921 or email to
DNRNR40Comments@wisconsin.gov. Written comments may be submitted until March 21, 2010. Written comments, whether submitted electronically or by U.S. mail, will have the same weight and effect as oral statements presented at the public hearing. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Kearns.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Explanation of agency authority
The principal authority for the department's invasive species rules is s.
23.22 (2) (a) and
(b) 6., Stats., which requires the department to establish a statewide program to control invasive species in this state and directs the department to promulgate rules to identify, classify and control invasive species for purposes of the program, which may include procedures and requirements for issuing permits to control invasive species. In order to fulfill this broad duty, the department adopted ch.
NR 40 to provide it with all of the tools that are required to control invasive species, wherever found in the state, including regulation of the possession, transportation, transfer and introduction of specific invasive species, general preventive measures designed to restrict pathways by which humans commonly spread or introduce invasive species, authority to enter property in order to inspect, survey and control invasive species, and authority to recover the state's costs when it must carry out necessary control measures because responsible parties do not comply with department orders to control invasives themselves.
Section
23.11 (1), Stats., delegates to the department such further powers as may be necessary or convenient to enable it to exercise the functions and perform the duties required of it by ch.
23, Stats., and by other provisions of law.
Invasive species have caused environmental and economic damage and threaten human health, and will continue doing so unless adequate control measures are adopted and implemented. The general legislative delegation to the department of all necessary or convenient powers set out in s.
23.11 (1), Stats., combined with the broad directive in s.
23.22 (2) (a) and
(b) 6., Stats., to control invasive species in this state give the department sufficient power to adopt and revise as needed rules for the protection of public health, safety, welfare and the environment, but particularly for the promotion of public welfare, convenience and general prosperity. The department's exercise of legislatively delegated police powers, as embodied in its invasive species rules, has its basis in the inherent power and duty of government to protect and promote the life, comfort, safety and welfare of society.
Section
23.09 (2) (intro), Stats., grants the department general authority to adopt rules for the protection, development and use of forests, fish and game, lakes, streams, plant life, flowers and other outdoor resources in this state. Section
23.091, Stats., authorizes the department to acquire, develop, operate and maintain state recreation areas, to establish use zones within state recreation areas providing for the full range of recreational uses, including hunting and fishing, and to promulgate rules to control uses within zones and limit the number of persons using any zone. Section
23.11 (1), Stats., gives the department the authority to have and take the general care, protection and supervision of all state parks, of all state fish hatcheries and lands used therewith, of all state forests, and of all lands owned by the state or in which it has any interests.
Section
23.28 (3), Stats., prohibits the department from allowing any use of a designated state natural area which is inconsistent with or injurious to its natural values, and authorizes the department to establish use zones, control uses within a zone and limit the number of persons using zones in designated state natural areas. Section
27.01 (2) (j), Stats., grants the department authority to promulgate rules necessary to govern the conduct of state park visitors, and for the protection of state park property, or the use of facilities, including the use of boats and other watercraft on lakes or rivers within the limits of a state park, and the use of roads, trails or bridle paths.
Section
29.014 (1), Stats., directs the department to establish and maintain any bag limits and conditions governing the taking of fish that will conserve the fish supply and ensure the citizens of this state continued opportunities for good fishing. Section
29.039 (1), Stats., authorizes the department to develop conservation programs to ensure the perpetuation of nongame species, require harvest information and establish limitations relating to taking, possession, transportation, processing and sale or offer for sale, of nongame species. “Nongame species" is defined as any mammal, bird, fish, or other creature of a wild nature endowed with sensation and the power of voluntary motion that is living in the wild and that is not classified as a game fish, game animal, game bird or furbearing animal. Section
29.041, Stats., provides that the department may regulate fishing on and in all interstate boundary waters, and outlying waters.
Finally, s.
227.11 (2) (a), Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute. The department considers the rules created by this Order to be necessary to effectuate the purposes of s.
23.22, Stats.
Related statute or rule
Related statutes or rules include but are not limited to the following provisions which, to varying degrees, may apply to the identification, classification, control or other regulation of species that are invasive, or to conduct that may result in the introduction or spread of invasive species:
Statutory section — Title [or subject]
15.347 (18) Invasive species council.
23.093 Carp control research.
23.235 Nuisance weeds.
23.24 Aquatic plants.
26.20 (4) [Railroad right-of-way annual weed removal]
26.30 Forest insects and diseases; department
jurisdiction; procedure.
27.019 (7) (c) [County rural planning - highways only
native plantings allowed]
