Bulletin, June 25, 2010, Newly Enacted Legislation - 2009 Wisconsin Acts 146, 165, 218, 275, 282, 285, 342, 343, 344, 346, and 369

​Last Updated: June 25, 2010

Date: June 25, 2010
To: All Insurers Authorized to do Business in Wisconsin
From: Sean Dilweg, Commissioner of Insurance
Subject: Newly Enacted Legislation--2009 Wisconsin Acts 146, 165, 218, 275, 282, 285, 342, 343, 344, 346, and 369

​This bulletin contains a summary of the provisions of 2009 Wisconsin Acts 146, 165, 218, 275, 282, 285, 342, 343, 344, 346, and 369. Please review this bulletin and determine which laws apply to your company. This bulletin is for informational purposes and is not the office's interpretation of these laws. It is recommended that copies of applicable laws be obtained. Copies of any legislation are available from Legislative Documents, 1 East Main Street, Madison, WI 53703, and (608) 266-2400 or through the Legislature's Web site at www.legis.state.wi.us.

2009 WISCONSIN ACT 146

Amends ss. 40.51 (8), 40.51 (8m), 66.0137 (4), 120.13 (2) (g), 153.21 (title), 185.981 (4t) and 185.983 (1) (intro.), Wis. Stat., and creates ss. 146.903, 153.21 (3), 609.71 and 632.798, Wis. Stat., Disclosure of information by health care providers, hospitals, and insurers. Requires a self-insured health plan of the state or a county, city, village, town, or school district, or an insurer that provides coverage under a health insurance policy, including defined network plans and sickness care plans operated by cooperative associations, to provide to an insured under the health insurance policy or an enrollee under the self-insured health plan a good faith estimate of the insured's or enrollee's total out-of-pocket cost for the specified service. The information must be provided only if the insured or enrollee requests it, and it must be provided at no charge to the insured or enrollee. Before providing any of the information, the insurer or self-insured health plan may require the insured or enrollee to provide the name of the provider providing the service, the facility at which the service will be provided, the date the service will be provided, the provider's estimate of the charges, and the Current Procedural Terminology code or Current Dental Terminology code for the service. In addition, the bill provides that any good faith estimate provided is not a legally binding estimate.

A complete copy of 2009 Act 146 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act146.pdf

The provisions of Act 146 first apply on or after January 1, 2011.

2009 WISCONSIN ACT 165

Repeals ss. 185.981 (4t), 185.981 (6) and 185.982 (3), Wis. Stat., and amends ss. 71.26 (1) (a), 71.45 (1) (a), 71.45 (5), 146.81 (1) (k), 146.997 (1) (d) 17, 155.01 (7), 185.09, 185.981 (title), 185.981 (1), 185.981 (2), 185.981 (3), 185.981 (4), 185.981 (5), 185.981 (7), 185.981 (8), 185.981 (9), 185.982 (1), 185.982 (2), 185.983 (1) (intro.), 185.983 (1) (a), 185.983 (1m), 185.983 (2), 185.985, 252.14 (1) (ar) 12, 254.11 (13), 632.86 (1) (a) and 655.002 (1) (f), Wis. Stat., Health care plans operated by cooperative associations. Under Act 165, the name of the plans that cooperative associations may establish and operate is changed from "sickness care plans" to "health care plans." The Act also specifies that establishing and maintaining these plans may be the primary, as opposed to exclusive, purpose of the cooperative association.

The Act allows a cooperative association to offer its services to nonmembers. However, the Act specifies that providing care to others is not one of a cooperative association's "primary" purposes. The Act adds that nothing in the statutes that specifies that the purpose of the cooperative association is primarily to establish and operate a health care plan precludes a cooperative association from owning an interest in other entities for improving member services or for investment.

The Act specifically allows a cooperative association to make a payment in cash, indemnity, or other material benefit for a purpose that is incidental to its plans, including for the purpose of administering coordination of benefits. The Act also expands types of health care providers that a cooperative association may contract with.

The Act removes a provision that prohibits a cooperative association from spending more than 5% of capital stock or membership fees on promotional expenses.

The Act eliminates a provision that prohibits a contract by or on behalf of a cooperative association from providing for the payment of cash or other material benefit to a subscriber or the subscriber's estate on account of death, illness, or injury.

The Act provides that a cooperative association may stipulate in its plans that it will pay a nonparticipating physician and surgeon, optometrist, chiropractor, dentist, or other provider for health care rendered to a covered person, without limitation to being outside the association's normal territory.

A complete copy of 2009 Act 165 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act165.pdf

2009 Act 165 became effective on March 30, 2010.

2009 WISCONSIN ACT 218

Repeals s. 632.89 (2) (a) 2, 632.89 (2) (b), 632.89 (2) (c) 2, 632.89 (2) (d) 2, 632.89 (2) (dm) 2, 632.89 (3m), 632.89 (6) and 632.89 (7), Wis. Stat., renumbers s. 632.89 (2m), 632.89 (4) and 632.89 (5), Wis. Stat., amends ss. 40.51 (8), 40.51 (8m), 46.10 (8) (d), 46.10 (14) (a), 49.345 (8) (d), 49.345 (14) (a), 66.0137 (4), 120.13 (2) (g), 185.981 (4t), 185.983 (1) (intro.), 301.12 (8) (d), 301.12 (14) (a), 632.89 (2) (a) 1, 632.89 (2) (c) 1, 632.89 (2) (d) 1, 632.89 (2) (dm) 1, 632.89 (2) (e), 632.89 (title) and 632.89 (2) (title), Wis. Stat., repeals and recreates s. 632.89 (1) (b), 632.89 (1) (em), 632.89 (4) (title) and 632.89 (5) (title), Wis. Stat., and creates ss. 111.91 (2) (qm), 609.71, 632.89 (1) (at), 632.89 (3), 632.89 (3c), 632.89 (3f), 632.89 (3p), 632.89 (4) (b), 632.89 (5) (a) (title) and 632.89 (5) (c), Wis. Stat., Insurance coverage for nervous and mental disorders, alcoholism and other drug abuse. Act 218 maintains the requirement for group insurers to provide coverage of mental health/AODA services. The Act repeals the minimum dollar coverage amounts previously specified in the statutes. The Act also requires that any exclusions and limitations; deductibles; co-payments; coinsurance; annual and lifetime payment limitations; out-of-pocket limits; out-of-network charges; day, visit, or appointment limits; limitations regarding referrals to nonphysician providers and treatment programs; and duration or frequency of coverage limits under the plan; may be no more restrictive for coverage of the treatment of mental health/AODA conditions than the most common or frequent type of treatment limitations applied to substantially all other coverage under the plan. The Act specifies that the plan must include in any overall deductible amount or annual or lifetime limit or out-of-pocket limit for the plan expenses incurred for treatment of mental health/AODA conditions.

Act 218 includes exemptions to the parity requirements:

• A group health benefit plan or a governmental self-insured health plan that provides coverage for mental health/AODA conditions may elect to be exempt from the parity requirements under the Act during any plan year following any plan year in which, as a result of the parity requirements, there is an increase under the plan in the total cost of coverage for the treatment of physical conditions and mental health/AODA conditions that exceeds 2% in the first plan year in which those requirements apply, or 1% in subsequent plan years. The cost increase may not be determined until the plan has complied with the requirements for at least the first six months of the plan year for which the increase is to be determined. In addition, the cost increase must be determined and certified by a qualified actuary. The plan must notify all enrollees that it has elected to be exempt. If a plan elects to be exempt from the parity requirements, the plan is subject to the minimum dollar coverage amounts specified in prior Wisconsin law.
• An employer that provides health care coverage for its employees though a group health benefit plan may elect to be exempt from the parity requirements during a plan year if, on the first day of the plan year, the employer will have fewer than 10 eligible employees. A plan that qualifies for this exemption must notify all enrollees that it has elected to be exempt. If a plan elects to be exempt from the parity requirements, the plan is subject to the minimum dollar coverage amounts specified in prior Wisconsin law.

The Act requires a group health benefit plan, a governmental self-insured health plan, and an individual health benefit plan, that provides coverage for the treatment of mental health/AODA conditions, must make available the criteria for determining medical necessity under the plan with respect to that coverage. The criteria must be made available, upon request, to any current or potential insured, participant, beneficiary, or contracting provider. Also, the Act provides that if a group health benefit plan or a governmental self-insured health plan that provides coverage for mental health/AODA conditions denies any particular insured, participant, or beneficiary coverage for services for that treatment, or if an individual health benefit plan that provides coverage for these conditions denies any particular insured coverage for services for that treatment, the plan must, upon request, make the reason for the denial available to those persons. This requirement is in addition to complying with current law with respect to explaining restrictions or terminations of coverage.

The Act provides that the law on mental health/AODA coverage does not apply to coverage of autism spectrum disorders.

OCI will promulgate rules for administration of the mental health/AODA coverage law, including rules specifying information in the notices to be given to enrollees under the exemptions described above and the manner in which those notices must be given, specifying who is responsible for the actuarial study and cost-increase determination and specifying retention requirements for the cost-increase determination and underlying documentation. OCI is required to follow, as a minimum standard, any relevant federal regulations or guidelines that are in effect. The rules may be promulgated as emergency rules.

A complete copy of 2009 Act 218 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act218.pdf

The provisions of Act 218 become effective December 1, 2010. It applies to health benefit plans that are issued or renewed on or after that date and governmental self-insured plans that are established, extended, modified, or renewed on or after that date, subject to any collective bargaining agreements.

2009 WISCONSIN ACT 275

Creates s. 628.34 (13), Wis. Stat., Exempting wellness programs from unfair trade or marketing practices. Act 275 provides that specified unfair trade and marketing practices in current law do not apply to advertising, marketing, offering, or operating a wellness program. The Act defines "wellness program" as a program that is designed to promote health or prevent disease through a reward to insured individuals and that meets the required qualifications of wellness programs under federal law relating to prohibiting discrimination against insurance participants and beneficiaries based on a health factor.

A complete copy of 2009 Act 275 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act275.pdf

2009 Act 275 became effective on May 26, 2010.

2009 WISCONSIN ACT 282

Renumbers subchapter III of chapter 440 [precedes 440.41], subchapter IV of chapter 440 [precedes 440.51], subchapter V of chapter 440 [precedes 440.60], subchapter VI of chapter 440 [precedes 440.70], subchapter VII of chapter 440 [precedes 440.88], subchapter VIII of chapter 440 [precedes 440.90], subchapter IX of chapter 440 [precedes 440.96], subchapter X of chapter 440 [precedes 440.97], subchapter XI of chapter 440 [precedes 440.98], subchapter XII of chapter 440 [precedes 440.9805] and subchapter XIII of chapter 440 [precedes 440.99], Wis. Stat., amends ss. 157.055 (2) (intro.), 441.15 (2m), 448.03 (2) (a) and 632.895 (12m) (b) 4, Wis. Stat., and creates ss. 440.03 (13) (b) 15m, 440.08 (2) (a) 20m, subchapter III of chapter 440 [precedes 440.310] and 632.895 (12m) (b) 3m, Wis. Stat., Licensure and regulation of behavior analysts, insurance coverage of the services of behavior analysts for autism treatment. Act 282 adds behavior analysts to the list of providers that may provide physician prescribed services for the treatment of autism spectrum disorders required to be covered by health insurance policies and self-insured governmental and school district health plans. Paraprofessionals working under a behavior analyst's supervision are also covered. The Act also provides for licensure and regulation of behavior analysts by the Department of Regulation and Licensing (DRL) to engage in the practice of behavior analysis.

A complete copy of 2009 Act 282 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act282.pdf

2009 Act 282 became effective on May 26, 2010, except for the provisions regarding licensure of behavior analysts, which take effect on June 24, 2010.

2009 WISCONSIN ACT 285

Renumbers and amends s. 66.0137 (1), Wis. Stat., amends s. 66.0137 (3), Wis. Stat., and creates s. 66.0137 (1) (b) and 66.0137 (5) (c), Wis. Stat., Requiring municipalities to pay health insurance premiums for survivors of a firefighter who dies, or has died, in the line of duty. Act 285 requires a municipality, defined as a city, village, or town, to pay the health insurance premiums for spouses and children of deceased firefighters who died in the line of duty. The municipality is required to pay the health insurance premiums for surviving spouses until that spouse remarries or turns age 65. The municipality is required to pay the health insurance premiums for surviving children until the children reach the age of 18 unless the child is enrolled full-time in a secondary school or the child is enrolled in a college or university until the end of the year in which the child reaches the age of 27.

A complete copy of 2009 Act 285 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act285.pdf

2009 Act 275 became effective on May 27, 2010 and is applicable retroactively to a firefighter who has died in the line of duty before the effective date.

2009 WISCONSIN ACT 342

Repeals ss. 14.83, 601.415 (11), 601.59, 611.33 (2) (b) 1, 611.33 (2) (b) 2, and 646.03 (2n), renumbers s. 646.31 (1) (b), Wis. Stat., amends ss. 609.91 (1) (intro.), 609.91 (2), (3) and (4) (a), (b), (cm) and (d), 611.24 (3) (i), 612.22 (3) (a), (4) and (6), 614.29 (1), 614.42 (1) (a), 628.10 (5) (a), 632.32 (2) (at), 632.32 (2) (e) 2, 632.32 (2) (e) 3, 632.32 (2) (g) (intro.), 632.32 (2) (g) 1, 632.32 (4) (a) (intro.), 632.32 (4r) (a), 632.32 (4r) (c), 645.33 (1), 645.69 (1), 646.13 (2) (d), 646.13 (4), 646.31 (4) (a), 646.31 (12), 646.32 (1), 646.32 (2), 646.325 (1), 646.325 (2) (a) 1, 646.51 (3) (c), 646.51 (5) and 646.51 (6), Wis. Stat., and creates ss. 49.45 (31) (e), 601.31 (1) (Lg), 609.91 (1p), 632.32 (2) (ag), 632.32 (2) (be), 632.32 (4) (d), 632.897 (11), 646.01 (1) (b) 19, 646.31 (1) (b) 2 and 646.325 (4), Wis. Stat., Interstate Insurance Receivership Compact, segregated accounts, reciprocity for long-term care insurance policies, voting by fraternal members, the insurance security fund, modifications to motor vehicle insurance policy and umbrella and excess liability policy requirements, appointment of a special deputy commissioner to rehabilitate an insurer, providing an exemption from emergency rule procedures. Act 342 repeals the Interstate Insurance Receivership Compact which is dissolving and never became effective in Wisconsin.

The Act makes changes to current law relating to the Wisconsin Insurance Security Fund which protects insureds under certain kinds and lines of direct insurance in the event of a liquidation of an insurer.

Act 342 treats qualifying long-term care insurance policies purchased in another state under a program similar to Wisconsin's Long-Term Care Partnership Program in the same manner as policies purchased under Wisconsin's Long-Term Care Partnership Program for purposes of disregarding benefits paid under the policy when considering assets an applicant for Medical Assistance has available.

The Act permits fraternal insurance organizations to elect its directors by voting using electronic means or another method approved by the fraternal's board of directors in the bylaws.

The Act modifies license renewal fees for an insurance agent whose license is revoked but may be reinstated after certain requirements are met.

The Act creates an electronic application fee of $10 for new license applicants for filing an original resident intermediary license application following completion of prelicensing requirements.

Act 342 allows the Commissioner of Insurance to promulgate rules establishing standards that require insurers to provide continuation coverage for a person who is covered by a group health insurance policy as or through an employee whose insurance is terminated or who is eligible under any federal program that provides for a federal premium subsidy.

The Act provides that enrollees under a policy issued under Part C or Part D of Medicare are not liable for health care costs that are covered under such a policy providing prepaid or fee-for service health care or drug benefits.

Act 342 provides that members of a merging town mutual and the members of an assessable domestic mutual have the right to vote on the merger plan after it has been approved by the commissioner.

Act 342 makes various changes to current law relating to motor vehicle insurance policies and umbrella and excess liability policies including the following:

• Exempts policies insuring motor vehicles that are not owned by the insured or that are leased by the insured for a term of less than six months from the requirements related to coverages and coverage limits.
• Exempts umbrella and excess liability policies from the requirements that apply to motor vehicle insurance policies relating to uninsured, underinsured, and medical payments coverage.
• Clarifies that only one named insured is required to reject or request uninsured or underinsured coverage for an umbrella or excess liability policy and that such rejection or request applies to all persons insured under the policy.

A complete copy of 2009 Act 342 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act342.pdf

2009 Act 342 became effective May 27, 2010. Sections 646.32 (2) and 646.51 (6), Wis. Stat., first applies to decisions of the board of directors of the insurance security fund or its appointed committee or hearing examiner that are issued on the effective date of this subsection. Sections 646.31 (12) and 646.325 (2) (a) 1, Wis. Stat., first applies to liquidations for which an order of liquidation is issued on the effective date of this subsection. If a motor vehicle insurance policy or an umbrella or excess liability policy that is in effect on the effective date of this subsection contains a provision that is inconsistent with the treatment of s. 632.32 (2) (ag), (at), (be), (e) 2 or 3, (g) (intro.) or 1, (4) (a) (intro.) or (d), or (4r) (a) or (c), Wis. Stat., the treatment of s. 632.32 (2) (ag), (at), (be), (e) 2 or 3, (g) (intro.) or 1, (4) (a) (intro.) or (d), or (4r) (a) or (c), Wis. Stat., whichever is applicable, first applies to that motor vehicle insurance policy or umbrella or excess liability policy on the date on which it is renewed.

2009 WISCONSIN ACT 343

Repeals s. 628.347 (2) (b) 1, 628.347 (2) (b) 2, 628.347 (2) (b) 3, 628.347 (2) (b) 4 and 628.347 (6) (b), Wis. Stat., renumbers s. 628.347 (7), Wis. Stat., renumbers and amends s. 628.347 (2) (a), 628.347 (2) (b) (intro.), 628.347 (2) (d) and 628.347 (4), Wis. Stat., amends s. 628.347 (title), 628.347 (1) (a), 628.347 (1) (b), 628.347 (2) (title), 628.347 (5) (intro.) and 628.347 (6) (c), Wis. Stat., repeals and recreates s. 628.347 (2) (c), 628.347 (3) and 628.347 (4) (title), Wis. Stat., and creates s. 628.347 (1) (am), 628.347 (1) (d), 628.347 (1) (e), 628.347 (2) (a) 1, 628.347 (2) (a) 2, 628.347 (2) (a) 3, 628.347 (2) (a) 4, 628.347 (2) (bm), 628.347 (2) (dm), 628.347 (3m), 628.347 (4) (b), 628.347 (4) (c), 628.347 (4m), 628.347 (5) (d) and 628.347 (7) (b), Wis. Stat. Suitability of annuity contracts. Act 343 requires insurers and intermediaries making recommendations on the purchase or replacement of an annuity shall have reasonable grounds to believe the recommendation is suitable for the consumer. The act also requires the disclosure to the insured of features of the annuity including potential surrender period and surrender charge, potential tax penalty if the consumer sells, exchanges, surrenders, or annuitizes the annuity, mortality and expense fees, investment advisory fees, potential charges for and features of riders, limitations on interest returns, insurance and investment components, and market risk. The Act also requires that consumers be informed of the benefits of the annuity.

Act 343 requires insurers to establish supervision systems designed to achieve compliance with the statutes including general and product-specific training requirements. Insurers must also maintain procedures to monitor all annuity sales and detect recommendations that are not suitable.

The Act also places training requirements on intermediaries, including one-time training for current life insurance licensees within the next six months. New licensees must also complete the training if they wish to sell annuities. The minimum of one-time or prelicensing education on annuities must be at least 4 hours.

A complete copy of 2009 Act 343 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act343.pdf

2009 Act 343 becomes effective on May 1, 2011. The treatment of s. 628.347 (6) (b) and (c), Wis. Stat., relating to reducing or eliminating penalties became effective on May 28, 2010.

2009 WISCONSIN ACT 344

Repeals s. 632.68, Wis. Stat., renumbers and amends s. 551.102 (32), Wis. Stat., amends ss. 49.857 (1) (d) 20, 71.05 (1) (f), 71.26 (3) (ag), 71.45 (2) (a) 14, 73.0301 (1) (d) 12, 321.60 (1) (a) 20, 551.102 (17) (d), 551.102 (17) (e), 551.102 (28) (intro.), 601.31 (1) (mm), 601.31 (1) (mp), 601.31 (1) (mr) and 601.31 (1) (ms), Wis. Stat., and creates s. 632.69, Wis. Stat., Life settlements. Act 343 changes the statutory term "viatical settlement" to "life settlement" and provides that any person, rather than just one with a catastrophic or life-threatening illness, may enter into a life settlement transaction. To regulate life settlements, the Act incorporates and expands upon requirements formerly applicable to viatical settlements. The Act treats Stranger Originated Life Insurance (STOLI) transactions and certain practices that are characteristic of STOLI transactions as fraudulent life settlement acts prohibited under the new law.

Act 344 does the following:

1. Defines terms including "life settlement," "stranger-originated life insurance," "broker," "provider," and "fraudulent life settlement act."
2. Requires that life settlement providers and brokers be licensed by the commissioner and meet specified qualifications, including completion of initial training and continuing education.
3. Authorizes the commissioner to examine the business of licensees and applicants for licenses and to revoke, suspend, or refuse to renew a provider's or broker's license in specified circumstances.
4. Requires specified disclosures to policyholders about life settlements.
5. Requires providers to obtain a statement from the policyholder's physician that the person is under no constraint or undue influence to enter into a life settlement contract.
6. Provides that, with certain hardship exceptions, a policyholder must wait five years from the date a policy is issued to enter into a life settlement agreement.
7. Requires licensees to keep specified records regarding life settlements and file annual statements with the commissioner regarding any policies settled within five years of issuance.

A complete copy of 2009 Act 344 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act344.pdf

2009 Act 344 takes effect on November 1, 2010.

2009 WISCONSIN ACT 346

Amends ss. 40.51 (8), 40.51 (8m), 66.0137 (4), 111.91 (2) (n), 120.13 (2) (g), 185.981 (4t) and 185.983 (1) (intro.), Wis. Stat., and creates ss. 609.87 and 632.895 (16), Wis. Stat., Health insurance coverage of colorectal cancer screening. Act 346 requires health insurance policies and plans that cover any diagnostic or surgical procedures to cover colorectal cancer examinations and laboratory tests for any insured or enrollee who is 50 years of age or older, or any insured or enrollee who is under 50 years of age and at high risk for colorectal cancer. The coverage requirement applies to both individual and group health insurance policies and plans, including defined network plans and cooperative sickness care associations; to health care plans offered by the state to its employees, including a self-insured plan; and to self-insured health plans of counties, cities, towns, villages, and school districts. The requirement specifically does not apply to limited-scope benefit plans or to policies covering only certain specified diseases.

The required coverage may be subject to any limitations, exclusions, or cost-sharing provisions that apply generally under the policy or plan. The Act requires the Commissioner of Insurance, in consultation with the Secretary of the Department of Health Services and after considering nationally validated guidelines, including guidelines issued by the American Cancer Society for colorectal cancer screening, to promulgate rules that do all of the following:

• Specify guidelines for colorectal cancer screening that must be covered under the Act.
• Specify the factors for determining whether an individual is at high risk for colorectal cancer.
• Periodically update the guidelines and factors, described above.

A complete copy of 2009 Act 346 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act346.pdf

2009 Act 346 takes effect on December 1, 2010. It applies to health benefit plans that are issued or renewed on or after that date and governmental self-insured plans that are established, extended, modified, or renewed on or after that date, subject to any collective bargaining agreements.

2009 WISCONSIN ACT 369

Amends s. 59.52 (11) (c), Wis. Stat., Expanding the types of governmental units that may participate in a joint local governmental self-insured health insurance plan. Act 369 adds county housing authorities to the governmental units (cities, villages, towns, or other counties) that may join together with a county to provide health care benefits to their officers and employees on a self-insured basis, provided that these entities together have at least 100 employees.

A complete copy of 2009 Act 369 can be viewed at http://www.legis.state.wi.us/2009/data/acts/09Act369.pdf

2009 Act 346 became effective on June 3, 2010.

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