26-2-129.

26-2-129.

26-31-110. Insured's rights and liabilities; settlements binding on receiver or liquidator; priority of claims; statements to be filed with receiver or liquidator.

(a) Any person recovering under this chapter assigns his rights under the policy to the association to the extent of his recovery from the association. Any insured or claimant seeking the protection of this chapter shall cooperate with the association to the same extent as that person would have been required to cooperate with the insolvent insurer. The association has no cause of action against the insolvent insurer's insured for any sums it has paid out except the causes of action as the insolvent insurer would have had if it had paid those sums. If an insolvent insurer is operating on a plan with assessment liability, payments of association claims do not reduce the insureds' liability to the receiver, liquidator or statutory successor for unpaid assessments.

(b) The receiver, liquidator or statutory successor of an insolvent insurer is bound by settlements of covered claims by the association or a similar organization in another state. The court having jurisdiction shall grant those claims priority equal to that which the claimant would have been entitled in the absence of this chapter against the insolvent insurer's assets. The expense of the association or similar organization in handling claims shall be accorded the same priority as the liquidator's expenses.

(c) The association shall periodically file with the insolvent insurer's receiver or liquidator:

(i) Statements of the covered claims the association pays; and

(ii) Estimates of anticipated claims on the association which preserve the association's rights against the insolvent insurer's assets.

26-31-111. Exhaustion of remedies under policy; claims recoverable from more than one association; claim limitation.

(a) Any person having a claim against an insurer under an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first exhaust his right under the policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the insurance policy.

(b) Any person having a claim which may be recovered under more than one (1) insurance guaranty association or its equivalent shall seek recovery first from the association of the insured's place of residence, except that if it is a first party claim for damage to property with a permanent location, he shall seek recovery first from the association of the location of the property. If it is a worker's compensation claim, he shall seek recovery first from the association of the claimant's residence. Any recovery under this chapter shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent.  (c) Notwithstanding any provision in this chapter, a covered claim shall not include any claim filed with the association after the earlier of:

(i) The final date set by the court for the filing of claims against the liquidator or receiver of an insolvent insurer; or

(ii) Twenty-five (25) months after the date of the order of liquidation.

26-31-112. Aids in detection and prevention of insurer insolvencies.

(a) To aid in the detection and prevention of insurer insolvencies:

(i) The board of directors shall:

(A) Upon majority vote, notify the commissioner of any information indicating any member insurer may be insolvent or in a financial condition hazardous to the policyholders or the public;

(B) At the conclusion of any insurer insolvency in which the association is obligated to pay covered claims, prepare and submit to the commissioner, a report on the history and causes of the insolvency as determined by the available information.

(ii) The board of directors, upon majority vote, may:

(A) Request that the commissioner order an examination, as specified in subsection (b) of this section of any member insurer which the board in good faith believes may be in a financial condition hazardous to the policyholders or the public;

(B) Make reports and recommendations to the commissioner upon any matter germane to the solvency, liquidation, rehabilitation or conservation of any member insurer, and the reports and recommendations are not public documents;

(C) Make recommendations to the commissioner for the detection and prevention of insurer insolvencies.  (iii) It is the commissioner's duty to report to the board of directors when he has reasonable cause to believe that any member insurer examined or being examined at the board of directors' request may be insolvent or in a financial condition hazardous to the policyholders or the public.

(b) Within thirty (30) days from the date of receipt of a request for examination as specified in subparagraph (a)(ii)(A) of this section, the commissioner shall begin the examination. The examination may be conducted as a National Association of Insurance Commissioners' examination or may be conducted by any qualified persons the commissioner designates. The cost of the examination shall be paid by the association, and the examination report shall be treated as are other examination reports. The examination report shall not be released to the board of directors prior to its release to the public, but this does not preclude the commissioner from complying with paragraph (a)(iii) of this section. The commissioner shall notify the board of directors when the examination is completed. The request for an examination shall be kept on file by the commissioner but it shall not be open to public inspection prior to the release of the examination report to the public.

26-31-113. Examination and regulation of association by commissioner; annual financial report.

The association is subject to the commissioner's examination and regulation. Not later than March 31 of each year, the board of directors shall submit a financial report for the preceding calendar year in a form the commissioner approves.

26-31-114. Exemption from payment of fees and taxes.

The association is exempt from payment of all fees and all taxes levied by this state or any of its subdivisions, except taxes levied on property.

26-31-115. Rates and premiums to be sufficient to recoup assessments paid to association.

The rates and premiums charged for insurance policies to which this chapter applies shall include amounts sufficient to recoup a sum equal to the amounts the member insurer pays to the association less any amounts the association returns to the member insurer. Rates containing an amount reasonably calculated to recoup assessments the member insurer pays are not excessive.  26-31-116. No liability for lawful action.

There is no liability on the part of and no cause of action of any nature shall arise against any member insurer, the association or its agents or employees, the board of directors or the commissioner or his representatives for any lawful action they take in the performance of their powers and duties under this chapter.

26-31-117. Stay of proceedings against insolvent insurer; setting aside judgment.

All proceedings in which the insolvent insurer is a party or is obligated to defend a party in any court in this state shall be stayed for sixty (60) days from the date the insolvency is determined to permit proper defense by the association of all pending causes of action. As to any covered claims arising from a judgment under any decision, verdict or finding based on the default of the insolvent insurer or its failure to defend an insured, the association either on its own behalf or on behalf of the insured may apply to have the judgment, order, decision, verdict or finding set aside by the same court or administrator making the judgment, order, decision, verdict or finding and may defend against the claim on the merits.

CHAPTER 32 - PREPAID OR PREARRANGED FUNERAL CONTRACTS

ARTICLE 1 REGULATION OF PREPAID AND PREARRANGED FUNERAL CONTRACTS

26-32-101. Supervision and audit of funds; approval of investment; promulgation of rules and regulations; licenses.

(a) The department shall supervise and audit the funds derived by any person either residing in or doing business within the state, from prepaid or prearranged funeral contracts providing for the sale of caskets, burial vaults, monuments or memorials or any burial supplies and equipment and funeral services, if the sale is made, either outright or on the installment basis, prior to the demise of the person purchasing them or for whom they are purchased, with the merchandise or service, or both, to be delivered at a future date at time of need. All funds received from these contracts or arrangements by any person either residing in or doing business within this state shall be received, invested and withdrawn according to requirements the department approves. Investment in a bank, trust company or federal savings and loan association in Wyoming is an approved investment. The deposit of funds received from the sale of these contracts or arrangements in irrevocable pre- need funeral trusts, the funds of which are invested in compliance with W.S. 4-10-901 and 4-10-902, is an approved investment. Earnings, including interest, income and dividends, from any investment of an irrevocable pre-need funeral trust may inure to the benefit of the seller of the prepaid or prearranged funeral contract, but shall be withdrawn from the irrevocable trust only upon the occurrence of an event that requires withdrawal of the corpus of the trust. Neither the person purchasing a prepaid or prearranged funeral contract nor any person for whom the contract is purchased shall be entitled to terminate or cancel the contract or make demand for the funds paid for the contract after the funds are deposited into an irrevocable pre-need funeral trust.

(b) The commissioner shall promulgate rules and regulations for the purposes specified in subsection (a) of this section to include regulation of contract provisions and funds thereunder. The rules shall require notice to buyers of prepaid or prearranged funeral contracts of the types of investments into which funds derived from the sale of these contracts may be deposited and the risks associated with those investments. The rules shall require notice to buyers of the ability to cancel or terminate a contract or make demand for any amounts paid for the contract. Rules promulgated by the commissioner shall not require any additional surety bond amount for those monies deposited in an irrevocable pre-need funeral trust and invested in compliance with W.S 4-10-902 beyond the minimum surety bond required of all persons deriving funds from prepaid or prearranged funeral contracts.

(c) A person shall not sell prepaid or prearranged funeral contracts in this state unless the person is licensed by the department in accordance with W.S. 26-9-203.

26-32-102. Exemption from attachment or garnishment.

In the absence of fraud no interest of any participant in such fund, contract or investment is liable to attachment, garnishment, or other processes, or shall be seized, taken, appropriated or applied by any legal or equitable process or operation of law to pay any debt or liability of the participant, or any other person who may have a right thereunder. Any funds received and invested as stipulated in this chapter shall be as a trust and are not liable to attachment, garnishment or other processes, nor shall they be seized, taken or appropriated or applied by any legal or equitable processes or operation of law to pay any debt or liability of the person issuing the prepaid or prearranged funeral contract, or both.

26-32-103. Penalty.

Any person who violates any provision of this chapter is guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment for not more than six (6) months, or both.

ARTICLE 2 LIFE INSURERS CONTRACTS FOR FUNERAL SERVICES

26-32-201. Life insurers contracts for funeral services; rules.

(a) A life insurer may contract or agree with any person, funeral director, mortuary or undertaker for the sole purpose of the funeral director, mortuary or undertaker conducting the funeral of any insured of the insurer.

(b) The commissioner shall by rule regulate contracts authorized under this section.

CHAPTER 33 - MEDICAL MALPRACTICE INSURANCE

26-33-101. Definitions.

(a) As used in this chapter:

(i) "Account" means the medical liability compensation account;

(ii) "Board" means the board of directors of the medical liability compensation account;

(iii) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any physician for, to, or on behalf of a patient during the patient's medical care, treatment or confinement;

(iv) "Insurer" means an authority or an insurance company engaged in writing malpractice liability insurance in this state in accordance with this code;  (v) "Malpractice" means the rendering of or failure to render professional medical services as a result of which the patient has a cause of action against a licensed physician for monetary damages;

(vi) "Physician" means a person licensed by the state board of medicine to provide health care or professional services as a physician.

26-33-102. Qualification.

(a) To be qualified under this chapter, a physician shall annually purchase health care professional liability insurance coverage of not less than fifty thousand dollars ($50,000.00) per occurrence for any act, error or omission relating to medical care rendered during the policy year and pay the surcharge pursuant to W.S. 26-33-105(c).

(b) A physician failing to qualify under this section is not covered by this chapter.

26-33-103. Insurance coverage.

A qualified physician shall be insured in a minimum amount of fifty thousand dollars ($50,000.00) against a claim for malpractice. Any award or settlement adjudicated or allowed on a malpractice claim in excess of fifty thousand dollars ($50,000.00) or limits of other underlying coverage if greater occurring during any year in which the physician is qualified under this chapter shall be paid from the account subject to the limitation that obligations from the account shall not exceed one million dollars ($1,000,000.00) in any calendar year for one (1) or more awards or settlements against an individual physician.

26-33-104. Advance payments.

Any advance payment a defendant physician or his insurer makes to or for the plaintiff, or any other person, is not an admission of liability for injuries or damages the plaintiff or anyone else suffers as to a claim for malpractice. Evidence of an advance payment is not admissible in a court proceeding concerning malpractice until there is final determination in the plaintiff's favor, in which case the final amount payable shall be reduced by any advance payments.  26-33-105. Medical liability compensation account.

(a) There is created a medical liability compensation account, the monies of which shall be collected by the commissioner for exclusive use for the purposes stated in this chapter. The account and any investment income from it shall be held in trust and invested and reinvested by the state treasurer pursuant to W.S. 9-4-715(a), (d) and (e).

(b) The commissioner may use account monies to purchase insurance for the account and its obligations. The commissioner shall be notified of a suit within thirty (30) days from the date the suit is filed. The commissioner may participate in a physician's defense if any claim is sufficient to be a potential liability against the account. Reasonable legal expenses the board approves and the commissioner incurs in defense against any malpractice claim are payable out of the account.

(c) To create the account, all physicians qualified under W.S. 26-33-102, practicing in Wyoming and who elect to participate, shall pay an annual surcharge. The commissioner shall determine the surcharge based upon sound actuarial principles using data obtained from Wyoming experience. The surcharge shall not exceed one hundred fifty percent (150%) of the cost to each physician for a basic fifty thousand dollar ($50,000.00) malpractice insurance premium and shall be collected on the same basis as premiums by each insurer from the physician.

(d) The surcharge is due and payable within thirty (30) days after the insurer receives the premiums for malpractice liability insurance from the practicing physician in Wyoming. The commissioner shall send to each insurer a statement explaining the provisions of this section together with any other information necessary for their compliance with this section.

(e) If the insurer collects the annual premium surcharge but does not pay it to the state within the stated time limit, the commissioner may suspend the insurer's certificate of authority until the annual premium surcharge is paid.

(f) All expenses of collecting, protecting and administering the account or related to the purchase of insurance for the account shall be paid from the account. The commissioner may employ financial, administrative or legal consultants to assist in the account management.  (g) If the account balance exceeds four million dollars ($4,000,000.00) at the end of any calendar year after payment of all claims and expenses, the commissioner shall reduce the surcharge to maintain the account at an approximate level of four million dollars ($4,000,000.00).

(h) The commissioner shall purchase reinsurance, if needed, to protect the account from depletion due to judgment against it. The reinsurance so purchased shall cover each qualified physician from two hundred fifty thousand dollars ($250,000.00) to one million dollars ($1,000,000.00) per year. Cost of reinsurance shall be paid from the monies of the account.

26-33-106. Board created; membership; removal; terms; duties.

(a) There is created a medical liability compensation account board which shall consist of six (6) members. The governor shall appoint four (4) members with the advice and consent of the senate. The state treasurer and the commissioner are the other voting members. The governor may remove any member he appoints as provided in W.S. 9-1-202.

(b) Of the members the governor appoints:

(i) One (1) shall be a physician licensed to practice in Wyoming by the state board of medicine;

(ii) One (1) shall be a practicing attorney licensed to practice in Wyoming by the Wyoming state bar;

(iii) One (1) shall be a health care consumer; and

(iv) One (1) shall be a licensed insurance agent in Wyoming.

(c) Two (2) members shall serve for terms ending two (2) years from January 1 immediately following their appointment and two (2) members shall serve for a term of four (4) years from that date. Their successors shall serve for terms of three (3) years each. Effective July 1, 1979, appointments and terms shall be in accordance with W.S. 28-12-101 through 28-12-103.  (d) The board shall administer and govern the account and shall file rules and regulations therefor with the secretary of state.

26-33-107. Settlements.

Any settlement of a claim against a physician exceeding fifty thousand dollars ($50,000.00) or limits of other underlying coverage if greater shall be carried out through agreement jointly by the claimant, the insurance carrier and the commissioner. If the claimant settles with the insurance carrier, without including the commissioner in the settlement agreement, the claimant waives any claim for damages exceeding fifty thousand dollars ($50,000.00) or limits of other underlying coverage if greater arising from the incident for which the claim is made.

26-33-108. Payments from account.

The state auditor, at the direction of the commissioner, shall issue a warrant in satisfaction of each claim submitted to him against the account after receipt of a certified copy of a final judgment from a court having jurisdiction, or a settlement agreement signed by a claimant, a qualified representative of the insurance carrier and the commissioner, with original signatures. The warrant shall be for the amount exceeding fifty thousand dollars ($50,000.00) or limits of other underlying coverage, if greater, set forth in the judgment or settlement, subject to the limitation that the amounts paid from the account shall not exceed one million dollars ($1,000,000.00) in any calendar year for one (1) or more awards or settlements against an individual physician.

26-33-109. Contents of policies.

Any policy issued under this chapter is presumed to comply with this chapter. The insurer assumes all obligations to pay an award imposed against its insured under this chapter and no policy termination by cancellation is effective unless at least ninety (90) days before the effective date of the cancellation both the insured and the commissioner receive at their offices, a written notice giving the date upon which termination is effective.

26-33-110. Failure to pay claims.  (a) If a professional liability insurer, in the regular course of business, fails to pay its portion of any judgment rendered against any physician or any other person insured under this chapter, the commissioner shall suspend that insurer's certificate of authority until the portion of the judgment allocable to the insurer is paid in full, provided the insurer has the right to a hearing in accordance with W.S. 26-3-115(b).

(b) This section does not apply:

(i) If the insurer has asserted against the physician any policy defense based upon misrepresentation, fraud, noncooperation or any other matter which constitutes an avoidance of the policy;

(ii) If the time for filing any petition for review, new trial, appeal or rehearing, or all of them has not expired; or

(iii) Until such time as all review or appellate decisions are final.

26-33-111. Exemption from Wyoming Insurance Guaranty Association Act.

This chapter is exempt from and has no application to the Wyoming Insurance Guaranty Association Act.

CHAPTER 34 - HEALTH MAINTENANCE ORGANIZATIONS

26-34-101. Short title.

This chapter is known and may be cited as "The Health Maintenance Organization Act of 1995".

26-34-102. Definitions.

(a) As used in this chapter:

(i) "Administrator" means the director of the department of health;

(ii) "Basic health care services" means emergency care, inpatient hospital and physician care, and outpatient medical services, but does not include mental health services or services for alcohol or drug abuse;  (iii) "Capitated basis" means fixed per member per month payment or percentage of premium payment wherein the provider assumes the full risk for the cost of contracted services without regard to the type, value or frequency of services provided. For purposes of this definition, "capitated basis" includes the cost associated with operating staff model facilities;

(iv) "Carrier" means a health maintenance organization, an insurer, a hospital and medical service corporation or other entity responsible for the payment of benefits or the provision of services under a group contract;

(v) "Commissioner" means the insurance commissioner of this state;

(vi) "Coinsurance" means a percentage of eligible charges payable by an enrollee directly to a provider for covered services rendered;

(vii) "Copayment" means an amount an enrollee must pay in order to receive a specific service which is not fully prepaid;

(viii) "Deductible" means the amount an enrollee is responsible to pay out-of-pocket before the health maintenance organization begins to pay the costs associated with treatment;

(ix) "Discontinuance" means the termination of the contract between the group contract holder and a health maintenance organization due to the insolvency of the health maintenance organization, and does not refer to the termination of any agreement between any individual enrollee and the health maintenance organization;

(x) "Enrollee" means an individual who is enrolled in a health maintenance organization;

(xi) "Evidence of coverage" means any certificate, agreement or contract issued to an enrollee setting out the coverage to which the enrollee is entitled;

(xii) "Extension of benefits" means the continuation of coverage under a particular benefit provided under a contract following termination with respect to an enrollee who is totally disabled on the date of termination;  (xiii) "Group contract" means a contract for health care services which by its terms limits eligibility to members of a specified group. The group contract may include coverage for dependents;

(xiv) "Group contract holder" means the person to which a group contract has been issued;

(xv) "Health care services" means any services included in the furnishing to any individual of medical or dental care, vision care or hospitalization or incident to the furnishing of that care or hospitalization, as well as the furnishing to any person of any other services for the purpose of preventing, alleviating, curing or healing human illness, injury or physical disability;

(xvi) "Health maintenance organization" means any person, except a person offering a dental only or vision only plan, who undertakes to provide or arrange for basic health care services to enrollees on a prepaid basis, except for enrollee responsibility for copayments, coinsurance or deductibles, and may include providing or arranging for:

(A) Physician services directly through physician employees or under arrangements with individual physicians or groups of physicians;

(B) Other health care services on a prepayment or other financial basis.

(xvii) "Health maintenance organization producer" means a person who solicits, negotiates, effects, procures, delivers, renews or continues a policy or contract for health maintenance organization membership, or who takes or transmits a membership fee or premium for such a policy or contract, other than for himself, or a person who advertises or otherwise holds himself out to the public as undertaking any of the activities of a health maintenance organization producer;

(xviii) "Individual contract" means a contract for health care services issued to and covering an individual. The individual contract may include dependents of the subscriber;

(xix) "Insolvent" or "insolvency" means that the organization has been declared insolvent and placed under an order of liquidation by a court of competent jurisdiction;  (xx) "Managed hospital payment basis" means agreements under which the financial risk is primarily related to the degree of utilization rather than to the cost of services;

(xxi) "Net worth" means the excess of total admitted assets over total liabilities, but the liabilities shall not include fully subordinated debt;

(xxii) "Participating provider" means a provider as defined in paragraph (xxiv) of this subsection who, under an express or implied contract with the health maintenance organization or with its contractor or subcontractor, has agreed to provide health care services to enrollees with an expectation of receiving payment, other than copayment, coinsurance or deductible, directly or indirectly from the health maintenance organization;

(xxiii) "Person" means as defined by W.S.