None.
Staff Time Required
80 hours.
Contact Information
Insurance
This rule was approved by the governor on September 30, 2011.
Rule No.
Agency No. 145 – Emergency Rule to revise Ch.
Ins 18.
Relating to
Grievances and independent review requirements.
Description of the Objective of the Rule
The Office of the Commissioner of Insurance's objective for an emergency rule is to modify ch.
Ins 18 to comply with necessary portions of the Public Health Service Act as amended, and as implemented by regulation. Amending ch.
Ins 18 to comply with federal requirements will allow the State of Wisconsin to retain regulatory oversight of the internal grievance process and external independent review process. Publication of an emergency rule will need to occur as soon as possible as the US Department of Health and Human Services must determine whether a state's process is compliant with federal law and regulation prior to January 1, 2012 in order for that state to retain regulatory jurisdiction over insurers and independent review organizations.
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
Wisconsin currently regulates the conduct of insurers and independent review organizations relating to an insured's right to file grievances with his or her insurer and seek independent review of coverage denial determinations. Sections
632.83 and
632.835, Stats., as implemented by ch.
Ins 18, provide the structure and requirements for processing grievances and requests for independent review. The law and regulations have provided structure for insurers, guidance for insureds and oversight of independent review organizations.
With amendments to the Public Health Service Act and promulgation of regulations to implement those changes regarding internal appeals and independent external review, states must demonstrate compliance with the amended federal law and regulations in order to retain regulatory authority over insurers and independent review organizations related to the internal and external review processes. To achieve compliance, Wisconsin's grievance and independent review processes and independent review organization certification must be reviewed and modified. If conflicts are identified, an emergency rule will be needed to resolve the conflict. The goal will be to maintain the balance that currently exists in the Wisconsin regulatory structure.
There is no other option than an emergency rule if Wisconsin is to retain regulatory oversight of insurers and independent review organizations, as compliance must obtained prior to plan years beginning January 1, 2012.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
200 hours and no other resources are necessary.
Description of all Entities that may be Impacted by the Rule
Nearly all entities related to health insurance are affected by the changes to the Public Health Service Act, as amended, including intermediaries, insurers, independent review organizations and third-party administrators. Affected entities will either have to comply with federal regulations or state regulations.
Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
The Public Health Service Act, as amended, (
42 USC 300gg et seq.) provides insureds a right to grieve an adverse benefit determination and request an independent external review of the determination. The US Department of Health and Human Services (DHHS) in conjunction with the National Association of Insurance Commissioners (NAIC) issued and amended federal regulations (
45 CFR 147.136) implementing portions of the Public Health Service Act as amended. The regulations in large part incorporate the NAIC Uniform Health Carrier External Review Model Act (NAIC Model Act). In addition to the regulations, the DHHS issued four technical guidance documents between July 2010 and June 2011 to assist states, insurers and consumers with understanding the requirements for compliant internal appeal and external independent review processes.
Sections
632.83 and
632.835, Stats., provide the framework with ch.
Ins 18, Wis. Adm. Code, implementing the law that provide unique options for insureds, insurers and independent review organizations not contained in the NAIC Model Act. However Wisconsin's law and regulations contain provisions that directly conflict with the federal requirements and several provisions that only partially comply. With conflicting provisions or provisions not fully in compliance, Wisconsin is at risk for losing regulatory oversight of internal and external review processes.
An emergency rule will be needed in order to comply with federal requirements that are necessary for the State of Wisconsin to retain regulatory jurisdiction over insurers and independent review organizations implementing grievance and independent review processes. The DHHS will issue final determinations of states compliance with federal law and regulation on or before October 1, 2011, but will reconsider that determination up until January 1, 2012 when insurers and independent review organizations will need to be in compliance with either a compliant state program or the federal requirements. Publication of an emergency rule that is applicable beginning January 1, 2012 will be necessary in order for Wisconsin to be in compliance and retain regulatory jurisdiction.
Contact Person
Julie E. Walsh, Attorney, 608-264-8101.
