1. (1) Purpose. This section interprets and implements s. 632.89, Stats.

2. (2) Applicability.

   1. (a) This section applies to group health benefit plans as defined in s. 632.745 (9), Stats., health benefit plans as defined in s. 632.745 (11), Stats., and self-insured governmental health plans unless otherwise excluded pursuant to s. 632.89 (5), Stats.

   2. (b) For group health benefit plans and self-insured governmental plans covering employees who are affected by a collective bargaining agreement, the coverage under this section applies as follows:

      1. 1. If the collective bargaining agreement contains provisions consistent with s. 632.89, Stats., the coverage under this section first applies on the earliest of any of the following: the date the group health benefit plan is issued or renewed on or after December 1, 2010, or the date the self-insured governmental health plan is established, modified, extended or renewed on or after December 1, 2010.
      2. 2. If the collective bargaining agreement contains provisions inconsistent with s. 632.89, Stats., the coverage under this section applies on the earliest of any of the following: the date the collective bargaining agreement expires, or the date the collective bargaining agreement is extended, modified, or renewed.
3. (3) definitions. In addition to the definitions in s. 632.89 (1), Stats., the definitions in s. Ins 3.37 (2m), shall also apply to this section.

4. (4) Individual Health Benefit Plans.

   1. (a) An insurer offering a health benefit plan on an individual basis that provides benefit coverage for the treatment of nervous and mental disorders or substance use disorders shall provide their criteria for determining medical necessity for coverage upon request and provide a detailed explanation of the reason for a benefit denial to the insured or the insured’s authorized representative. The detailed explanation shall be in addition to the explanation of benefits required pursuant to s. 632.857, Stats.
   2. (b) Insurers offering individual health benefit plans that provide coverage of the treatment of nervous and mental disorders or substance use disorders may impose treatment limitations if the treatment limitations are no more restrictive than the most common or frequent type of treatment limitations applied to substantially all other coverage under the plan and in accordance with s. 632.89 (2), Stats., 29 CFR 2590.712, and s. 2707 (a) of Pub. L. 111-148, as applicable.
   3. (c) Expenses incurred for the treatment of nervous and mental disorders or substance use disorders shall be included in any overall deductible amount, annual, lifetime, or out-of-pocket limits for the plan.

5. (5) Limitations.

   1. (a) Insurers offering group health benefit plans and self-insured governmental health plans that provide coverage of the treatment of nervous and mental disorders, and substance use disorders may impose treatment limitations. If treatment limitations are utilized by an insurer or self-insured governmental plan than the treatment limitations shall be no more restrictive than the most common or frequent type of treatment limitations applied to substantially all other coverage under the plan, in accordance with this section, s. 632.89 (2), Stats., 29 CFR 2590.712, and s. 2707 (a) of Pub. L. 111-148, as applicable.
   2. (b) Expenses incurred for the treatment of nervous and mental disorders and substance use disorders shall be included in any overall deductible amount, annual, lifetime, or out-of-pocket limits for the plan.

6. (6) Increased Cost Exemption.

   1. (a) Solely claims-experience rated employer. At the request of an employer that is solely claims experience rated, an insurer offering a group health benefit plan shall have a qualified actuary determine whether the employer is eligible for a cost exemption based on the actual group claims experience in accordance with s. 632.89 (3c), Stats. Insurers may require employers to give at least 90-days advance notice to the insurer from the employer’s renewal date for obtaining the determination.

      1. 1. The insurer shall request that the qualified actuary prepare an actuarial determination, provide copies of the actuarial determination and all underlying documents that the actuary relied upon in making the determination to the insurer. The insurer shall provide the actuary’s determination to the employer within 45 days of the employer’s request.
      2. 2. The insurer shall be responsible for all expenses related to the actuarial cost increase determination and certification.
      3. 3. Both the insurer and the employer shall maintain the actuarial determination and underlying documentation for a period of not less than five years and in accordance with s. Ins 6.80.

   2. (b) Combined pooled and claims experience rated employer. An insurer offering a group health benefit plan shall have a qualified actuary determine whether the employer is eligible for an exemption in accordance with either of the following:

      1. 1. For an employer that is predominantly rated based on both its own claims experience and has less than 51 percent of the claims experience pooled with other group health plans, the calculation is to be based on the proportionate share applied due to actual group claims experience and the share applied due to the pooled experience and in accordance with s. 632.89 (3c), Stats. Insurers may require employers to give at least 90-days advance notice to the insurer from the employer’s renewal date for obtaining the determination.

         1. a. The insurer shall request that the qualified actuary prepare an actuarial determination, provide copies of the actuarial determination and all underlying documents that the actuary relied upon in making the determination to the insurer. The insurer shall provide the actuary’s determination to the employer within 45 days of the employer’s request.
         2. b. The insurer shall be responsible for all expenses related to the actuarial cost increase determination and certification.
         3. c. Both the insurer and the employer shall maintain the actuarial determination and underlying documentation for a period of not less than five years and in accordance with s. Ins 6.80.

      2. 2. For an employer that is predominantly rated based on claims experience pooled with other group health benefit plans that constitutes 51 percent or more of the claims experience, the insurer shall have a qualified actuary determine whether the pooled group is eligible for an exemption calculated based on the pool’s claims experience and in accordance with s. 632.89 (3c), Stats. Insurers may require employers give at least 30-days advance notice to the insurer from the employer’s renewal date for obtaining the determination.

         1. a. The insurer shall have a qualified actuary calculate one time each year a determination of whether the employers participating within the pool are eligible for a cost exemption.
         2. b. The insurer shall be responsible for all expenses related to the actuarial cost increase determination and certification.
         3. c. The insurer shall provide a copy of the actuary’s determination to an employer within 15 days of the employer’s request. The insurer shall provide a date on which the actuarial determination will be available annually. The insurer shall maintain the actuarial determination and underlying documentation for a period of not less than five years and in accordance with s. Ins 6.80.
   3. (c) Prior and succeeding insurers. During the first year after an employer changes insurers offering group health benefit plans, the succeeding insurer shall accept as accurate and may rely upon the prior insurer’s determination of eligibility for cost exemption. A succeeding insurer shall provide the prior insurer’s calculation to the employer following a timely request for purposes of calculating the employer’s eligibility for a cost exemption.

   4. (d) Notice of election. An insurer offering a group health benefit plan or a self-insured governmental health plan shall provide the applicable notice to the employer who qualifies for and elects an increased cost exemption under s. 632.89 (3c), Stats. The insurer shall inform the employer to notify promptly all enrollees under the plan of the exemption not to exceed 30-days following the cost increase determination and exemption election.

      1. 1. The notice shall be in substantially the form outlined in Appendix 2, using a standard typeface with at least a 10-point font, indicating the exemption election and that the plan will comply with benefit coverage requirements contained in s. 632.89 (2), 2007 Stats.
      2. 2. The notice shall be provided to each plan enrollee in either electronic or paper form.
      3. 3. The notice shall also be posted in a prominent position in each workplace of the employer.

7. (7) Small Employer Exemption.

   1. (a) Employer request. An employer having fewer than 10 eligible employees on the first day of the plan year may elect an exemption from compliance with s. 632.89, Stats. An insurer offering a group health benefit plan or self-funded government plan shall inform the employer that in lieu of those requirements, the plan may cover benefits for nervous and mental disorders and substance use disorders in accordance with the requirements contained in s. 632.89 (2), 2007 Stats.

   2. (b) Notice of election. An insurer offering a group health benefit plan or a self-insured governmental health plan shall provide the applicable notice to the employer who qualifies for and elects the small employer exemption under s. 632.89 (3f), Stats. The insurer shall inform the employer to notify promptly all enrollees under the plan of the exemption not to exceed 30 days from the employer’s determination to elect exemption. The notice shall comply with all of the following:

      1. 1. The notice shall be in substantially the form outlined in Appendix 1, using a standard typeface with at least a 10-point font, indicating the exemption election and that the plan will cover benefits for nervous and mental disorders and substance use disorders in accordance with the requirements contained in s. 632.89 (2), 2007 Stats.
      2. 2. The notice shall be provided to each plan enrollee in either electronic or paper form.

      3. 3. The notice shall be posted in a prominent position in each workplace of the employer.

         Ins 3.375 Appendix 1

         Small Employer Notice of the Plan’s Election of Exemption from Mental Health and Substance Use Disorder Parity for [This Plan Year]

         You are receiving this notice as an employee of [name of employer group]. This notice is to inform you that [name of employer group] qualifies and elects to be exempt from the state nervous and mental disorders and substance use disorders coverage parity requirements for this plan year, beginning [insert date of the first day of the plan year]. The employer is eligible to elect this exemption based upon having fewer than 10 eligible employees. Benefits may change as of [insert the date of the first day of the plan year].

         Despite the exemption from the state nervous and mental disorders and substance use disorders coverage requirements, state law requires [name of employer group] to comply with the minimum mandated coverage requirements and limitations contained in s. 632.89 (2), 2007 Stats., for treatment services for nervous and mental disorders and substance use disorders.

         For this plan year, your plan provides the following coverage related to nervous and mental disorders and substance use disorders:

         [Insert plain language benefits summary]

         Carefully review your health plan’s benefits, limitations, and exclusions for detailed information on services and coverage available to you and your family this plan year. If you have additional questions please contact [insert contact name, phone number and e-mail address if available].

         Ins 3.375 Appendix 2

         Group Health Benefit Plan Notice of Election of Exemption from Mental Health and Substance Use Disorder Parity for [This Plan Year]

         You are receiving this notice as an employee of [name of employer group]. This notice is to inform you that [name of employer group] qualifies and elects to be exempt from the state nervous and mental disorders and substance use disorders coverage parity requirements for this plan year, beginning [insert date of the first day of the plan year].

         A group health benefit plan may elect to be exempt from mental health and substance use disorder parity if there are increases in the employer’s total cost of coverage for the treatment of physical conditions and nervous and mental disorders and substance use disorders by a percentage that exceeds either two percent (2%) in the first plan year in which the nervous and mental disorders and substance use disorders coverage requirements apply or one percent (1%) in any plan year after the first plan year in which the requirements apply. Benefits may change as of [insert the date of the first day of the plan year].

         Despite the exemption from the state nervous and mental disorders and substance use disorders coverage requirements, state law requires [name of employer group] to comply with the minimum mandated coverage requirements and limitations contained in s. 632.89 (2), 2007 Stats., for treatment services for nervous and mental disorders and substance use disorders.

         For this plan year, your plan provides the following coverage related to nervous and mental disorders and substance use disorders:

         [Insert plain language benefits summary]

         Carefully review your health plan’s benefits, limitations, and exclusions for detailed information on services and coverage available to you and your family this plan year. If you have additional questions please contact [insert contact name, phone number and e-mail address if available].

History

History: EmR1043: emerg. cr., eff. 11-29-10; CR 10-149: cr. Register June 2011 No. 666, eff. 7-1-11.