None
Comparison of similar rules in adjacent states
Illinois:
215 ILCS 5/143a In Hartbarger v. Country Mut. Ins. Co., 107 Ill. App. 3d 391, it was found that this section was enacted to insure a minimum amount of uninsured motorist protection, but did not give the authority to rewrite unambiguous provisions of an umbrella policy in order to expand the maximum coverage afforded plaintiff.
Iowa:
Iowa Code § 321A.21 Primary insurance is purchased to be the first tier of insurance coverage while an umbrella policy is intended to cover only catastrophic losses that exceed the insured's required primary insurance limit. “Umbrella" policies are not included under Iowa Code § 321A.21, the financial responsibility statute. Jalas v. State Farm Fire & Cas. Co., 505 N.W.2d 811, 1993 Iowa Sup. LEXIS 211 (Iowa 1993).
Michigan:
Michigan is a no-fault state and thus is not comparable to Wisconsin.
Minnesota:
Minnesota is a no-fault state and thus is not comparable to Wisconsin.
Summary of factual data and analytical methodologies
The rule continues the status quo.
Analysis and supporting documentation used to determine effect on small businesses
The change will continue the existing practice used by insurers issuing commercial umbrella and commercial liability policies covering only HNO. As such, it will have no impact. Small businesses may not be able to obtain general liability insurance or be required on short notice to have to find another carrier for their business insurance.
Small Business Impact
This rule will have little or no effect on small businesses. The lack of this change would likely disrupt small business insurance and thus their operation.
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
Summary
This rule will continue the status quo and thus would not affect any revenues or expenses of OCI.
Private sector fiscal impact
This rule change will have no significant effect on the private sector regulated by OCI and will continue the status quo regarding insurers and small businesses.
State or local government fiscal impact
There will be no state or local government fiscal effect.
Long-range fiscal implications
None.
Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s. 601.41 (3), Stats., and the procedures set forth under ss. 227.18 and 227.24 (4), Stats., the Office of the Commissioner of Insurance (OCI) will hold a public hearing to consider emergency rules and proposed permanent rules creating section Ins 3.36, Wis. Adm. Code, relating to autism spectrum disorders treatment and affecting small business.
Hearing Information
Date:   December 2, 2009
Time:   2:00 p.m., or as soon thereafter as the
  matter may be reached
Place:   OCI, Room 227
  125 South Webster Street, 2nd Floor
  Madison, WI
Submission of Written Comments
Written comments can be mailed to:
Julie E. Walsh
Legal Unit - OCI Rule Comment for Rule Ins 336
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 336
Office of the Commissioner of Insurance
125 South Webster St – 2nd Floor
Madison WI 53703-3474
Comments can be emailed to:
Julie E. Walsh
Comments submitted through the Wisconsin Admin. Rule Web site at: http://adminrules.wisconsin.gov on the proposed rule will be considered.
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.
Copy of Proposed Rule and Contact Person
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, OCI Services Section, at:
Phone:   (608) 264-8110
Address:   125 South Webster St – 2nd Floor,
  Madison WI 53703-3474
Mail:   PO Box 7873, Madison, WI 53707-7873
Analysis Prepared by the Office of the Commissioner of Insurance (OCI)
Statutes interpreted
Sections 600.01, 628.34 (12), 632.895 (12m), Stats.
Statutory authority
Explanation of agency authority
The statutes all relate to the commissioner's authority to promulgate rules regulating the business of insurance as it relates to disability insurance products. Specifically, s. 632.895 (12m) (f), Wis. Stats., requires the commissioner to define “intensive-level services," “nonintensive-level services," “paraprofessional," and “qualified" for purposes of providing services under this subsection. The statute further authorizes that the commissioner may promulgate rules governing the interpretation or administration of this subsection.
Related statutes or rules
There are no other statutes or rules that mandate services for autism spectrum disorders. This rule creates a new section to implement the newly created mandate pursuant to 2009 Wis. Act 28.
Plain language analysis and summary of the proposed rule
Under 2009 Wisconsin Act 28, the Commissioner is required pursuant to s. 632.895 (12m), Stats., to define four terms: intensive level services, non-intensive level services, qualified, and paraprofessionals; and may draft rules that relate to the interpretation or administration of section.
To ensure clear understanding of current provider qualifications and treatment options for autism spectrum disorders the Commissioner established the Autism Working Group. The work group was charged with advising the Commissioner on definitions for the four required terms and making recommendations on how the statute should be implemented. The group was composed of parents, providers, insurers, and advocates. Administrators of the Waiver program at the Department of Health services also participated. The group met every other week beginning June 23rd, 2009 until September 10th, 2009
The Waiver program was used as a baseline to discuss the implementation of the new mandate. Current literature on autism spectrum disorders and information from other states was presented to the working for review and consideration. Because the research and literature in the realm of autism treatments is rapidly evolving, the working group recommended defining “evidence-based" and “behavioral" rather than creating a list of approved therapies that could readily become outdated.
The proposed rule includes definitions of intensive level behavioral therapy and non-intensive level therapy. Based upon current research, the rule limits intensive level services to children aged 2 to 9 as this period of time has shown to be the optimum time for gains for individuals diagnosed with autism spectrum disorders. Building from the waiver program, the working group developed a comprehensive regulation.
The proposed rule contains criteria necessary for one to be considered qualified provider, qualified professional, qualified therapist and qualified paraprofessional. The criteria include a combination of educational, professional and specific training with individuals diagnosed with autism spectrum disorders and for qualified paraprofessionals specific requirements for supervised implementation of a treatment plan for the insured. The rule includes provisions to permit individuals who are currently providing services through the department's waiver program to be deemed qualified for up to two years and permit insurers and self-funded plans to contract with these individuals who are experienced but may not met the “qualified" requirements.
The rule also handles several administrative concerns. It allows insurers to deny claims they believe to be fraudulent, exclude travel time from the required hours of treatment and allocated dollars for treatment and permits dispute resolution through independent review organizations.
Comparison with federal regulations
Autism Treatment Acceleration Act of 2009 (S. 819, H.R. 2413) was proposed in May. If passed, Section 12 will require all insurance companies across the country to provide coverage for evidence-based, medically-necessary autism treatments and therapies. If passed a comparison of final federal requirements and state law and regulation will need to be reviewed.
Additionally, the ``Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008'' (29 U.S.C. 1185a), requires for group health plans that offer both medical and surgical benefits and mental health or substance use disorder benefits to ensure financial and treatment limitations are no more restrictive than the predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan. Further the federal law does not permit separate cost sharing requirements that are applicable only with respect to mental health or substance use disorder benefits. Federal guidance is due early 2010 on the Mental Health Equity Act of 2008. Wisconsin's law is broader than the federal act but will need to be reviewed when the federal regulations are finally promulgated and effective.
Comparison of similar rules in adjacent states
Illinois:
Public Act 95-1005 requires private insurers cover autism benefits for children under 21 years of age. No rule-making accompanied this law, however, the statute does include Applied Behavioral Analysis, intervention, and modification as a part of the covered behavioral treatments. The law is subject to pre-existing condition limitations. It is also subject to denials based on medical necessity.
Iowa:
A bill, SF 1 was introduced in the Iowa legislature this year but did not pass. There are no other similar laws or rules in Iowa.
Michigan:
Two bills - HB 4183 and 4176 - requiring autism coverage, have passed the Michigan House; however, they are not expected to reach a vote this year. There are no other similar laws or rules in Michigan.
Minnesota:
Section 62A.3094 was enacted and became effective August 1, 2009. The mandate requires coverage for the diagnosis, evaluation, assessment and medically necessary care for autism spectrum disorders including intensive behavior therapy, behavior services, speech therapy, occupational therapy, physical therapy and medications.
Summary of factual data and analytical methodologies
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Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.