Bulletin, February 28, 2000, Implementation of ch. Ins 9, Wis. Adm. Code, Relating to Managed Care Plans, Preferred Provider Plans and Limited Service Health Organizations

​Last Updated: March 7, 2000

Date: February 28, 2000
To: All Insurers Licensed to Write Health Insurance in Wisconsin
From: Randy Blumer, Deputy Commissioner
Subject: Implementation of ch. Ins 9, Wis. Adm. Code, Relating to Managed Care Plans, Preferred Provider Plans and Limited Service Health Organizations

​New requirements under ch. 609, Wis. Stat., pertaining to access standards, continuity of care, and quality assurance involving managed care plans, preferred provider plans, and limited service health organizations became effective January 1, 1999. The Commissioner was required to develop, by rule, standards for managed care plans for compliance with the requirements of this chapter. This bulletin highlights the new market conduct standards, contained in subchapter III of ch. Ins 9, Wis. Adm. Code, that apply to all insurers with managed care plans, preferred provider plans, and limited service health organizations doing business in Wisconsin. The market conduct requirements previously contained in ss. Ins 3.48, 3.50, and 3.52, Wis. Adm. Code, have been incorporated into subchapter III of ch. 9, Wis. Adm. Code. The financial standards for health maintenance organizations and limited service health organizations previously contained in ss. 3.50 and 3.52, Wis. Adm. Code, have been moved to subchapter II of ch. Ins 9, Wis. Adm. Code. Significant changes to the previous regulations, such as in the managed care grievance requirements, are also noted in this bulletin.

This rule is effective March 1, 2000, but certain requirements become effective on later dates as indicated in Attachment 1 of this bulletin. Special Note: The rule requires the following certification forms and filings to be submitted to OCI this year:

• April 1, 2000 - Managed care plans that are not preferred provider plans must submit a quality assurance plan. See discussion below of this bulletin.
• April 1, 2000 - Insurers offering managed care plans must submit a certification of plan type. See discussion below of this bulletin.
• June 1, 2000 - Insurers that have managed care plans must submit a certification demonstrating compliance with required access standards. See discussion below of this bulletin.

Samples of the certification forms an insurer must use to annually certify to OCI the type of managed care plan it offers and the insurer's compliance with the access standards in s. 609.22, Wis. Stat., and this rule are included as Attachments 2 and 3. Insurers are also expected to apply the changes that were made to the grievance reporting requirements to the entire year's grievances, when submitting their report of grievances to OCI for the year 2000.

The Commissioner may approve an insurer's request for exemption from subchapter III of the rule if the Commissioner determines that the plan's coverage involves ancillary coverage with minimal cost controls such as vision, prescription cards or transplant centers; the cost controls are unlikely to significantly affect the pattern of practice; and the exemption is consistent with the purpose of the rule.

In addition, the rule allows for two limited exemptions. If the participating providers providing services covered by a managed care plan constitute a silent provider network as defined in s. Ins 9.01 (17), Wis. Adm. Code, the plan is exempt from the specific statutory requirements and rules listed in s. Ins 9.32 (1), Wis. Adm. Code, with respect to the services provided by the silent provider network. A managed care plan is also exempt from some, but not all, of the statutory requirements and rules pertaining to access standards, continuity of care, and quality assurance, if the insurer meets all of the de minimus limited exception criteria outlined in s. Ins 9.32 (2), Wis. Adm. Code. To qualify for this exemption, insurers will also need to amend or modify their existing policy and application forms.

This bulletin is not intended to be a complete discussion of the rule or how the Office of the Commissioner of Insurance will interpret and implement the new regulations. It is each insurer's responsibility to determine which provisions are applicable to its managed care plans, and to ensure that its policy forms and procedures are in compliance with the new rule.

A copy of the complete rule can be obtained by sending a written request, along with a large self-addressed, stamped envelope to OCI's Central Files Section, or you may review the rule on OCI's website at http://badger.state.wi.us/agencies/oci/rules/ins9fnl.pdf.

SUBCHAPTER I - DEFINITIONS

Section Ins 9.01, Wis. Adm. Code, contains the definitions that apply to managed care plans, preferred provider plans, and limited service health organizations. Insurers should carefully note the additional definitions for expedited grievance, health benefit plan, hospital emergency facility, individual practice association, managed care plan, OCI complaint, primary provider, and silent provider network.

Section Ins 9.01 (12)

The definition of managed care plan states that it has the meaning provided under s. 609.01 (3c), Wis. Stat., and clarifies that it includes Medicare + Choice plans as defined in s. Ins 3.39 (3) (cm), Wis. Adm. Code, Medicare Select policies as defined in s. Ins 3.39 (30) (b) 4, Wis. Adm. Code, and health benefit plans that either directly or indirectly contract for use of providers.

SUBCHAPTER II - FINANCIAL STANDARDS

The existing standards of ss. Ins 3.50 and 3.52, Wis. Adm. Code, have been reorganized into subchapter II of ch. Ins 9, Wis. Adm. Code. The relevant sections are s. Ins 9.02 through s. Ins 9.15, Wis. Adm. Code. No changes to the standards have been made. However, business plans must now include quality assurance plans.

SUBCHAPTER III - MARKET CONDUCT STANDARDS

Grievance Procedure

Section Ins 9.33, Wis. Adm. Code, requires managed care plans, preferred provider plans, and limited service health organizations to develop an internal grievance procedure that shall be described in each policy and certificate issued to enrollees. The previous grievance procedures in ss. Ins 3.48, 3.50 and 3.52, Wis. Adm. Code, were moved to this new section. The following changes and clarifications were made to the previous rules' requirements.

Section Ins 9.33 (2)

This section requires that the notice to the enrollee of the right to file a grievance shall either direct the enrollee to the grievance procedure in the certificate or shall provide the enrollee with a detailed description of the grievance procedure.

Section Ins 9.33 (3)

This section requires the plan to provide the grievant with a written acknowledgment of the receipt of the grievance within 5 business days.

Section Ins 9.33 (5)

This section requires the plan to provide reasonable accommodations to allow the enrollee or the enrollee's authorized representative to participate in the grievance panel meeting. The section includes requirements regarding the composition of the grievance panel. It also requires that the panel's written decision be signed by one panel member and must include a written description of the position titles of all the panel members involved in making the decision.

Section Ins 9.33 (6)

This section requires the plan to develop a separate expedited grievance procedure for situations where the normal duration of the grievance resolution process could have adverse health effects for the enrollee. Expedited grievances must be resolved as expeditiously as the enrollee's health condition requires but not more than 72 hours after the receipt of the grievance.

Section Ins 9.34 (1)

This section requires insurers that have a managed care plan to submit an annual certification to the Commissioner, signed by an officer of the company, demonstrating compliance with the access standards of this section and with s. 609.22, Wis. Stat., for the preceding year. A sample of the certification form an insurer must use is included as Attachment 2. The certification must first be submitted by June 1, 2000, and no later than August 1, each year thereafter.

Section Ins 9.34 (2)

This section requires an insurer offering a managed care plan to have the capability to provide covered benefits by plan providers with reasonable promptness. The availability of plan providers should reflect the usual practice and usual medical travel times within the local area. The insurer must have a sufficient number and type of plan providers to adequately deliver all covered services based on the demographics and health status of current and expected enrollees. It must also have the capability to provide 24-hour nationwide toll-free telephone access for its enrollees to the plan or to a participating provider for authorization for care that is covered by the plan. Enrollees must have the opportunity to speak to a person.

Continuity of Care

Section Ins 9.35, Wis. Adm. Code, requires managed care plans to notify enrollees of the termination of a provider and the enrollee's options for receiving continued care with the terminating provider. The plan may choose one of two options for providing the required notice. A managed care plan is not required to provide continued coverage if the provider no longer practices in the managed care plan's geographic service area, or if the insurer issuing the managed care plan terminates the provider's contract due to misconduct on the part of the provider. The managed care plan is required to make available to the Commissioner upon request, all information needed to establish cause for the termination of a provider. Medicare + Choice plans are not subject to s. 609.24 (1), Wis. Stat., in accordance with federal law.

Gag Clauses

Section Ins 9.36, Wis. Adm. Code, prohibits language in a contract between a managed care plan and a participating provider that limits a provider's ability to disclose information about an enrollee's medical condition. It further prohibits managed care plans from penalizing, terminating or retaliating against a provider for making referrals, discussing medically necessary care, or for advising of treatment options not covered under the plan.

Notice Requirements

Section Ins 9.37, Wis. Adm. Code, requires that managed care plans provide to prospective group or individual policyholders information regarding covered services, emergency and out-of-area coverage, cost-sharing requirements, enrollment procedures, and limitations on benefiting including limitations on choice of providers and geographical area serviced by the plan. Managed care plans are required to make current provider directories available to enrollees upon enrollment, and thereafter on an annual basis.

Section Ins 9.37 (3)

This section requires that managed care plans provide information at the time of enrollment on whether the plan permits obstetricians or gynecologists to serve as primary providers. Insurers are reminded that s. 609.22 (4m), Wis. Stat., prohibits a managed care plan from requiring a female enrollee to obtain a referral or a standing referral for covered obstetric or gynecologic benefits provided by a participating provider who specializes in obstetrics and gynecology if the participating provider is not the enrollee's primary provider.

Section Ins 9.37 (4)

This section requires that managed care plans make available information describing the criteria for obtaining a standing referral to a specialist, including participating and nonparticipating providers. The term "referral" as used in this section and in s. 609.22 (4), Wis. Stat., includes prior authorization for services regardless of use or designation of a primary care provider.

Policy and Certificate Language Requirements

Section Ins 9.38, Wis. Adm. Code, requires that each policy form marketed or each certificate issued by a managed care plan or limited service health organization plan include a definition of geographical service area, emergency care, urgent care, out-of-area service, dependent and primary provider, when these terms effect benefits covered by the plan. It requires the disclosure, in the exclusions, limitations, and exceptions section of the policy or certificate, of any provision that limits benefits or access to services. The policy or certificate shall include specific disclosure relating to emergency and urgent care, restrictions on the selection of primary or referral providers and on changing providers during the contract period, out-of-pocket costs including copayments and deductibles, and restrictions on coverage for dependents who do not reside in the service area. It also requires disclosure of Wisconsin's mandated benefits.

This section also requires that the policy or certificate provide a description of the procedure for obtaining any required referral, and the procedure for requesting a standing referral. It also requires a description of the procedure for obtaining a second opinion from a participating plan provider.

Section Ins 9.38 (4) (c)

This section allows a managed care plan to require notification of emergency room usage, but limits the notification to no less than 48 hours after receiving services or until such time it is medically feasible for the enrollee to provide the notice, whichever is later. Any penalty for failing to provide notification of emergency room usage is limited to the lesser of 50% of covered expenses for emergency treatment or $250.00.

Disenrollment

Section Ins 9.39, Wis. Adm. Code, requires the disclosure in the policy and certificate of any circumstances under which the health maintenance organization or limited service health organization may disenroll an enrollee. It allows disenrollment only in the event of specific actions on the part of the enrollee. In the event that an enrollee is unable to establish or maintain a satisfactory physician-patient relationship with the physician responsible for the enrollee's care, the health maintenance organization or limited service health organization must be able to demonstrate that it provided the enrollee with the opportunity to select an alternate primary care physician, has assisted the enrollee in establishing a satisfactory patient-physician relationship, and that it informed the enrollee of the right to file a grievance. The health maintenance organization or limited service health organization may not disenroll an enrollee due to the enrollee's physical or mental condition, the enrollee's failure to follow a prescribed course of treatment or the enrollee's failure to keep appointments or follow other administrative procedures or requirements.

Sections Ins 9.40 (2) and (3)

These sections require managed care plans to submit an annual quality assurance plan that is consistent with the requirements of s. 609.32, Wis. Stat., to the Commissioner. A managed care plan that is not a preferred provider plan, must submit a quality assurance plan by April 1, 2000, and by April 1 of each subsequent year. Preferred provider plans must submit a quality assurance plan which phases in the requirements of s. 609.32, Wis. Stat., no later than October 1, 2003, and by October 1, each year prior to 2007. Preferred provider plans must begin submitting a quality assurance plan consistent with all the requirements of s. 609.32, Wis. Stat., by April 1, 2007, and by April 1 of each subsequent year. By April 1, 2001, a preferred provider plan must establish and file with the Commissioner a written plan that indicates what steps it intends to take by October 1, 2003, that will enable it to implement a quality assurance plan. A preferred provider plan must submit an annual progress report concerning the implementation of its quality assurance plan to the Commissioner no later than April 1 of each calendar year prior to 2004. Preferred provider plans must also meet the requirements of s. 609.32 (2) (a), Wis. Stat., by October 1, 2002.

Section Ins 9.40 (4)

This section requires all insurers, with respect to managed care plans, to establish and maintain a quality assurance committee and a written policy governing its activities.

Sections Ins 9.40 (5) and (6)

These sections require managed care plans to submit a standardized data set designated by the Commissioner by June 15 of each year. Health maintenance organizations shall submit the data set beginning June 1, 2002. Managed care plans other than health maintenance organizations shall submit the data set beginning June 1, 2004.

Section Ins 9.40 (7)

This section requires that no later than April 1, 2001, all managed care plans include a summary of their quality assurance plan in their marketing materials, and include a brief summary of their quality assurance plan and a statement of patient rights and responsibilities in their certificates of coverage or enrollment materials.

This section requires insurers to submit an annual certification to the Commissioner, signed by an officer of the company, that indicates the type of the insurer's managed care plan. A sample of the certification form an insurer must use is included as Attachment 3. The certification must be submitted beginning April 1, 2000, and no later than April 1, each year.

Compliance Program Requirements

Section Ins 9.42, Wis. Adm. Code, requires that insurers writing managed care plans, preferred provider plans, and limited service health organization insurers establish a compliance program and procedures to verify compliance. This compliance program shall include a reasonable assurance that the insurer is in compliance with or has detected and timely corrected violations of the statutory requirements regarding the grievance procedure, access standards, continuity of care, provider disclosures, quality assurance, data systems and confidentiality, and the requirements under ch. Ins 9, Wis. Adm. Code. The insurer's compliance program shall include regular internal audits, including regular audits of any contractors or subcontractors performing specified functions for the insurer. In order to ensure compliance by contractors or subcontractors, the insurer shall contractually require the other party to carry out functions in a manner that will comply with the statutes and codes, enforce these contractual compliance requirements, including a requirement that gives the office access to documentation demonstrating compliance.

Section Ins 9.42 (2)

This section requires that the insurer's compliance program include provisions regarding the monitoring, supervising and auditing of the performance of the contractors or subcontractors carrying out the functions relating to compliance. The insurer shall maintain management reports and records necessary to monitor, supervise and audit the contractor's or subcontractor's performance. It also shall regularly audit compliance with contract provisions including audits of internal work papers and reports.

Section Ins 9.42 (5)

This section requires that the insurer maintain records of the following:

• Any audits conducted relating to the business and service operation of the managed care plan, preferred provider plan or limited service health organization
• All provider directories and provider manuals, including a list of all providers that disassociated with the plan
• A sample copy of the provider agreements, including those with a provider network, for each provider category
• Copies of contracts for management services, data management and process, marketing, and administrative services and case management
• A sample copy of each certificate form and enrollment form

The insurer also shall maintain a complete record of its access plan, quality assurance plan, credentialing plan, utilization management procedures and policies, and minutes from any committees that pertain to quality assurance, utilization management and credentialing.

Section Ins 9.42 (7)

This section provides that the insurer may permit another party to maintain these records if it includes and enforces the contractual provision providing office access to documentation demonstrating compliance and that it can produce any required record within 15 days after the office requests the record.

Persons To Contact For Additional Information

If you have questions, please put them in writing and address them to the appropriate contact persons listed below:

Attachment 1 - Chronological Summary of Requirements in ch. Ins 9

Attachment 2 - OCI 26-110 Certification of Access Standards

Attachment 3 - OCI 26-109 Certification of Managed Care Plan Type

ATTACHMENT 1

Chronological Summary of Requirements in ch. Ins 9