Related statute(s) or rule(s)
None.
Plain language analysis
The proposed rule implements s.
632.895 (16m), Stats., mandating coverage for colorectal cancer screening. For flexibility, the proposed rule allows insurers and self-insured governmental plans to select from among the U.S. Preventive Services Task Force, the National Cancer Institute, or the American Cancer Society guidelines it will follow related to colorectal cancer screening intervals and specific screening tests or procedures. Insurers and self-insured governmental health plans are to inform enrollees of the guideline or guidelines they use and if they use more than one guideline, which guideline is primary if a dispute arises.
The proposed rule requires insurers and self-funded governmental plans to provide coverage of at least three of four identified screening tools: fecal occult blood test, flexible sigmoidoscopy, colonoscopy and computerized tomographic colonography. The determination for appropriate screening test or procedure is to be based upon medical necessity or medically appropriate basis and is eligible for internal and independent review.
Additionally, the proposed rule sets forth guidance on determination of persons at high risk for developing colorectal cancer. The proposed guidance is based upon the guidelines of the American Cancer Society as it is the only organization that has detailed standards for high risk categories and screening intervals. However, the rule does permit insurers to utilize additional criteria if the National Cancer Institute or the U.S. Preventive Service Task Force develops high risk criteria.
In light of federal health reform, the proposed rule requires insurers to comply with preventive services contained in the patient protection and affordable care act of 2010, PL
111-148, as amended by the federal health care and education reconciliation act of 2010, P.L.
111-152. Finally, insurers and self-insured governmental health plans are required to annually review the selected guidelines and comply with updates in the subsequent policy year.
Summary of, and comparison with, existing or proposed federal regulations
The patient protection and affordable care act of 2010, PL
111-148, as amended by the federal health care and education reconciliation act of 2010, P.L.
111-152, (“ACA"), includes colorectal cancer screening as a covered preventive health service contained in the 45 CFR Subtitle A §
147.130. However, the federal requirements for preventive health are not effective until January 1, 2014. The federal regulation addresses cost sharing limitations that insurers may impose when the service is a preventive health service that supersede the state's law when implemented in 2014. The federal regulations and the ACA are not as specific as s.
632.895 (16m), Stats., and do not address high risk factors, therefore the state's law would not be preempted.
Comparison with rules in adjacent states
Illinois:
215ILCS5/356x Sec. 356x. Mandate provides coverage for colorectal cancer examination and screening in accordance with the published American Cancer Society guidelines. Illinois law also permits consideration of other existing colorectal cancer screening guidelines issued by nationally recognized professional medical societies or federal government agencies, including the National Cancer Institute, the Centers for Disease Control and Prevention, and the American College of Gastroenterology. The Illinois mandate restricts insurers from imposing deductible, coinsurance, waiting period, or other cost-sharing limitations that is greater than that required for other coverage under the policy.
Iowa:
No similar law.
Michigan:
No similar law.
Minnesota:
Minnesota statutes section 62A.30 mandates coverage for accident and health insurance, health maintenance organizations excluding fixed indemnity and accident only policies. Every policy or plan must provide coverage of routine screening procedures for cancer and the office or facility visit. Among the cancer screenings listed colorectal cancer is included. Reference is made to include other proven ovarian cancer screening evaluated by the federal food and drug administration or the National Cancer Institute.
Summary of factual data and analytical methodologies
OCI surveyed insurers doing business in Wisconsin regarding coverage of screening tests and procedures for colorectal cancer and found that of the insurers surveyed, all insurers currently provide coverage for some form of colorectal cancer screening.
As to guidelines, OCI consulted with the department of health services, representatives and discussed the proposed rule with interested parties including the American Cancer Society, Wisconsin Radiological Society, Wisconsin Association of Health Plans and numerous providers. The guidelines utilized in the rule include not only the American Cancer Society but also National Cancer Institute and the U.S. Preventive Services Task Force.
Analysis and supporting documents used to determine effect on small business
There are no insurers that offer comprehensive health insurance that qualify as small businesses in accordance with s.
227.114 (1), Wis. Stat. Intermediaries that solicit individual health insurance will be required to use the new form but since it is available at no cost from the office, the effect will be minimal.
Effect on Small Business
This rule will require intermediaries to learn about the colorectal cancer benefit but will not have a fiscal impact.
Initial regulatory flexibility analysis
Notice is hereby further given that pursuant to s.
227.114, Stats., the proposed rule may have an effect on small businesses. The initial regulatory flexibility analysis is as follows:
a. Types of small businesses affected:
Insurance agents, LSHO, Town Mutuals, Small Insurers.
b. Description of reporting and bookkeeping procedures required:
Adds the option of electronically filing forms to the OCI and requires attestation of the Flesch score and tool used to determine the Flesch score. No other bookkeeping or reporting requirements other than are currently required.
c. Description of professional skills required:
Some small businesses, not otherwise exempted by rule, will need to update the website to include information on how to request or access the insured's policy. Other than creating the notice, no other professional skills other than are currently required.
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
There will be no state or local government effect.
Private sector fiscal effect
There will be no significant fiscal effect on the private sector as the proposed rules add a benefit for consumers with little additional cost since most if not all insurers and self-funded governmental plans currently provide coverage.
Agency Contact Person
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 St – 2nd Floor, Madison WI
Mail: PO Box 7873, Madison, WI 53707-7873
Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under section
601.41 (3), Stats., and the procedures set forth in under sections 227.18 and 227.24 (4), Stat., OCI will hold a public hearing to consider the emergency rule and the adoption of the attached proposed permanent rulemaking order affecting sections
Ins 3.37 and
3.375, Wis. Adm. Code, relating to health insurance coverage of nervous and mental disorders and substance use disorders and affecting small business.
Hearing Information
Date and Time:
|
Location:
|
January 27, 2011
Thursday
1:00 pm
|
OCI
2nd Floor, Room 227
125 S. Webster St.
Madison, WI 53703
|
Submittal of Written Comments
Written comments can be mailed to:
Julie E. Walsh
Legal Unit - OCI Rule Comment for Rule Ins 3375
Office of the Commissioner of Insurance
PO Box 7873
Madison WI 53707-7873
Written comments can be hand delivered to:
Julie E. Walsh
Legal Unit - OCI Rule Comment for Rule Ins 3375
Office of the Commissioner of Insurance
125 South Webster St – 2nd Floor
Madison WI 53703-3474
Comments can be emailed to:
Julie E. Walsh
The deadline for submitting comments is 4:00 p.m. on the 10th day after the date for the hearing stated in this Notice of Hearing.
Copies of Proposed Rule
A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet Web site at
http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, Public Information and Communications, OCI, at:
inger.williams@wisconsin.gov, (608) 264-8110, 125 South Webster Street – 2
nd Floor, Madison WI or PO Box 7873, Madison WI 53707-7873.
Analysis Prepared by the Office fo the Commissioner of Insurance (OCI)
Statute(s) interpreted
Statutory authority
Explanation of agency authority
The commissioner is required to promulgate rules to implement recreated s.
632.89, Stats., pursuant to s.
632.89 (4) (b), Stats., ensuring that insurers offering group health benefit plans and self-funded governmental plans include as a covered benefit the treatment of nervous and mental disorders and substance use disorders. In addition s.
632.89 (4) (a), Stats., requires the commissioner to promulgate rules relating to transitional treatment.
Related statute(s) or rule(s)
Section
609.71, Stats., was also created by
2009 Wis. Act 218 requiring defined health plans comply with the requirements contained in s.
632.89 and s.
Ins 3.37, Wis. Admin. Code describe coverage for transitional treatment as required by s.
632.89 (4) (a), Stats.
Plain language analysis
The proposed rule implements the recreated s.
632.89, Stats., instituting mental health parity in the treatment of nervous and mental disorders and substance use disorders. The proposed rule amends regulations relating to transitional treatment coverage and creates a new section for implementing requirements for the coverage of nervous and mental disorders and substance use disorders.
The transitional treatment regulation is bifurcated into requirements for plans issued on or after November 1, 2007 and prior to December 1, 2010 and parallel numbered sections for polices issued on or after December 1, 2010. For existing policies or policies for which an employer has requested an exemption pursuant to s.
632.89 (3c) or
(3f), Stats., the requirements reflect s.
632.89, 2007 Stats., and updated cites and provisions of regulations contained in the department of health services pertaining to transitional treatment.
For plans issued on or after December 1, 2010, parallel requirements are created within the proposed revisions to s.
Ins 3.37 to apply to insurers offering group health insurance plans and for self-insured governmental plans on a going forward basis. The types of services are the same except for removal of minimum dollar limitations and the types of insurers or self-insured governmental plans to which the requirements apply.
Concerns were raised regarding compliance with the PPACA requirement of no annual limits for essential benefits and s.
632.89 (2), 2007 Stat., benefit levels. The concerns were silenced after identifying that the s.
632.89 (2), 2007 Stat., are written as “not less than" so act as benefit floors and do not preclude exceeding the floor amount therefore not volatile of the federal law.
The proposed rule also creates s.
Ins 3.375, Wis. Adm. Code, to implement s.
632.89, Stats., for policies issued on or after December 1, 2010, that requires insurers offering group health insurance and self-insured governmental plans to provide coverage for the treatment of nervous and mental disorders and substance use disorders no more restrictively than coverage for the most common or frequent type of treatment limitations that are applied to substantially all other coverage under the plan. This means insurers and self-insured governmental plans cannot impose limited benefits or impose different cost-sharing provisions based upon receiving nervous, mental or substance use disorders treatment. The rule defines “substantially all" to mean that the terms of coverage for nervous, mental and substance use disorders is to be treated no more restrictively than a single type of financial requirements or quantitative treatment limitations that apply to two-thirds of covered medical or surgical benefits.
Pursuant to s.
632.89 (3c), Stats., for employers seeking an exemption based upon increased costs related to the parity requirements, employers may request insurers to have a qualified actuary determine, at the insurer's cost, whether the employer is eligible for the exemption. Nothing in the rule, however, limits or prohibits an employer or self-funded governmental plan from obtaining, at their cost, a qualified actuarial determination.
Proposed s.
Ins 3.375 (5), contains provisions governing insurers offering individual health benefit plans that contain benefits for the treatment of nervous and mental disorders or substance use disorders. Insurers offering these individual health benefit plans shall make available the criteria for determining medical necessity and if the individual health benefit plan denies benefits related to nervous and mental disorders or substance use disorders it shall make the reason for the denial available to the insured, participant, or beneficiary in addition to complying with s.
632.857, Stats.
For eligible employers electing an exemption, Appendix 1 and 2 contain the model notices that insurers are to provide to employers or self-insured governmental plans that the employer is to post and distribute to employees explaining the basis of the exemption as well as a list of the benefits that will be provided to the employees as was contained in s.
632.89, 2007 Stats.
Summary of, and comparison with, existing or proposed federal regulations
