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Reduce Workers' Compensation Insurance Fraud In A Weak Economy With Analytical Vigilance

Most workers' compensation claims are legitimate. But unfortunately, there are those who will be drawn to commit fraud. Insurers must remain vigilant, protect their honest customers, and use effective tools to fight against workers compensation insurance fraud in a weak economy.|Most workers' compensation claims are legitimate. But unfortunately, there are those who will be drawn to commit fraud. Insurers must remain vigilant, protect their honest customers, and use effective tools to fight against workers compensation insurance fraud in a weak economy.

Workers' compensation insurance is designed to protect employees from workplace injuries. If an employee gets injured on the job, the workers' compensation insurer will cover medical treatment and lost wages. Insurance fraud is present in all economic environments. Boom or bust, there are always people who are looking to scam the system. In slow economic times, the economy contracts and the inevitable attrition and layoffs cause employment rolls to shrink. This may lead to fewer claims as there are fewer employees working and therefore fewer employees becoming injured. This decrease in claims may correspond to a decrease in Special Investigation Unit referrals or fraud investigations. However, insurers should be careful not to overreact to these changes in volume. The fraud problem may be worse than these numbers suggest. Here's why. Unemployment Plays A Big Part Unemployment is a scary thing. Employees facing layoffs risk losing their paycheck and their other employer-sponsored benefits like health insurance, all at once. When faced with the prospect of a layoff, some employees may be incented to fake a workplace injury to file a workers compensation claim. This accomplishes two things simultaneously: it provides a continuous income stream of wage replacement benefits as well as coverage for medical treatment for the employee. This may become an attractive option for desperate individuals who might not otherwise turn to insurance fraud. Furthermore, employees who have an active workers' compensation claim may be more likely to malinger if there are limited job prospects in the market. Regardless of whether these claims were legitimate or not at the onset, the insurer faces an increased risk of fraud in this area. It's Not Just The Employees In tough economic times, businesses need to trim expenses any way they can. Unfortunately, some business owners believe that misrepresenting their business to obtain lower workers compensation premiums is an option for reducing costs. This leaves the insurer over-exposed to risk while failing to collect adequate premium. And as insurers try to minimize their own expenses, it becomes less and less common to conduct onsite audits which can help mitigate this type of exposure. Insurers also need to be on the lookout for vendors like medical providers who may be "enhancing" their billing practices in an attempt to increase their own revenue. Padding medical bills or billing for services not rendered are common ways that unscrupulous medical providers try to scam workers' compensation insurers. Be Vigilant So, what can be done about workers' compensation insurance fraud risk in a weak economy? Here are some tips:
    • Don't make imprudent decisions about your investment in your anti-fraud program. Insurers may look to save money in tough economic times by trimming Special Investigation Unit resources. But this is the time that those precious resources are most valuable. If cuts are to be made, don't cut too deep.
    • Leverage analytics to identify anomalies. Optimized business rules, predictive models, and other analytical approaches can help effectively identify anomalous claim activity indicative of fraudulent behavior. Use these tools to focus your resources where they are needed most.
    • Trust but verify. The vast majority of insureds are thoughtful, law-abiding customers. But there are some who will try to take advantage of the system. Use text mining technology to scan claim notes for evidence of cash payments, improper use of contractors, or other evidence of potential premium fraud. Prioritize audits of these policies where policy language allows.
    • Keep vendors on their toes. Audit billing records and work with your medical bill processing and/or pharmacy benefit management vendors to keep a watchful eye on billing patterns. Use analytics to spot abnormalities or providers who are billing inconsistently to their peer group.
Most claims are legitimate. But unfortunately, there are those who will be drawn to commit fraud. Insurers must remain vigilant, protect their honest customers, and use effective tools to fight against workers compensation insurance fraud in a weak economy. See how one insurer chose to address this issue with the help of advanced technology.

James Ruotolo

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James Ruotolo

James Ruotolo is the Principal Insurance Fraud Solutions Architect in the Global Fraud & Financial Crimes Practice at SAS®. He is responsible for the planning, management and marketing of fraud detection and investigation management solutions for the property, casualty, life and disability insurance markets worldwide.

The Accountable Executive, Part 2 - Being Accountable for Effective Direction

Building an organization committed to the highest performance standards demands more than just good intentions: it also requires fostering practices that create an environment of clarity, commitment, and accountability. Without healthy accountability, an enterprise loses one of the key elements of management - predictability.

This is the second article in a six-part series based on the material from the book, The Accountable Executive, expected to be released in the Spring of 2012. In this series, Hal Johnson and Ed Street of LeadershipOne, address what they observe as major contributors to low accountability cultures — which they have observed as a meaningful area of struggle in many mid-market companies — and the antidote. Additional articles in the series can be found here: Part 1, Part 3, Part 4, Part 5, and Part 6.

Establishing The Vision And Aligning Activities
When we think of effective direction in a business setting, our thoughts tend to run to strategic planning. That makes sense, since one of the most fundamental responsibilities of an accountable executive is to assure the enterprise has good direction and related activities are in alignment with that direction. The well established processes found in the strategic planning cycle are sound — when fully embraced. Following the sequence of vision --> goals --> strategies --> projects --> implementation is a proven formula for creating effective direction. However, according to research at the Harvard Business School, only about 10% of companies do well with the implementation part. And, mostly, this is attributable to lack of accountability.

Building an organization committed to the highest performance standards demands more than just good intentions: it also requires fostering practices that create an environment of clarity, commitment, and accountability. Without healthy accountability, an enterprise loses one of the key elements of management — predictability.

What Is Accountability?
We are glad you asked, because there seems to be a lack of uniform clarity.

  1. It's a commitment — a statement of personal promise, both to yourself and the people around you, to deliver specific defined results. It reflects a winning attitude of "you can count on me."
  2. Producing results — results are important so mere activity is not enough.
  3. It is meaningless without consequences. Both positive and negative. Not responding to unaccountable behavior is the first step in a downhill slide of performance.
  4. At the top level, it assumes a proactive and conscious commitment to the purpose of the organization, manifested by clarity, transparency and participation, which enable contribution.

Where Are You In Embracing Accountability?
Creating an accountable organization is an ongoing process. Members of the leadership team should review practices regularly to assure that effective behaviors are sustaining accountability. In working with client companies where accountability is low, we have studied the various contributing causes. Based on our findings, the following indicators have emerged, pointing to opportunities to ratchet up performance through enhanced accountability. Take a look and see if you can spot a similar "opportunity."

  • Unclear purpose and priorities
  • Lack of timely decisions
  • Duplication of work
  • Ineffective meetings
  • Long and excessive work hours
  • Managers working in their subordinates' responsibility space
  • Slow and inefficient decision making process
  • Unclear promotional criteria and evaluations
  • Loss of good people
  • Thinking there is a capability problem

Accountability Shapes What The Company Is To Become
Unlike many change efforts that have come and gone, accountability is neither a fad nor a change that can be ignored. We have clients who have experienced major improvements in performance using accountability building initiatives. Most of these organizations had experienced a time of "let-down" and the quality of their performance diminished. It was also found that accountability had diminished. And, they had stopped looking for bad habits. They stopped checking their measurable variances in performance. They stopped addressing their unresolved conflicts and they stopped dealing with non-performers. As a result, their performance plummeted and they had to reestablish their accountability processes and commitments to get back on track.

The good news was that when they returned to their accountability practices, they quickly became more successful. This time, they had to increase their level of accountability, because the old level was no longer enough to sustain results. When accountability is an ongoing process, excellence in performance naturally increases. It definitely shapes what the company is to become.

The Ultimate Leadership Responsibility
Executives are constantly being bombarded by demands that impact their ability to sustain focus on the key contributors of success. Ultimately, this seems to be one of the major differentiators for long term success — sustaining accountability. Life is much easier when, as a business leader, you are surrounded by colleagues you can count on to do the right things. Building that culture goes a long way toward sustaining predictably good business results. And, right now, we need all of that we can get.

Authors
Hal Johnson collaborated with Ed Street in writing this article. Ed Street is a LeadershipOne Associate and has over forty years of professional and management experience in finance, strategic planning, general operating management and information systems design & implementation. He has a proven record of competence in achieving performance, productivity and cost improvements in team based environments while enhancing long term value creation. He has significant experience in facilitating and teaching finance, entrepreneurship and strategic planning in both academic and business environments.

Marcus Welby Is Dead - Long Live Marcus Welby

One of the core tenets of disruptive innovation is to use technology to transfer services from costly, expertise-intensive settings into more affordable, convenient, and accessible venues. Doctors from Seattle to South Carolina are demonstrating exactly that by removing the 40% insurance bureaucracy tax from healthcare.

As Dr. Jason Hwang, co-author of the Innovator's Prescription, has stated, one of the core tenets of disruptive innovation is to use technology to transfer services from costly, expertise-intensive settings into more affordable, convenient, and accessible venues. Doctors from Seattle to South Carolina are demonstrating exactly that by removing the 40% "insurance bureaucracy tax" from healthcare. You might think of it as "two parts Marcus Welby and one part Steve Jobs." The results have been staggering with a 40-80% reduction in the most expensive facets of healthcare (surgeries, scans, specialist and ER visits).

Primary care physicians consistently state that 2/3 of patient office visits could be done remotely via phone or email, but they are disincented from doing this with the convoluted reimbursement models of present day health insurance. If doctors don't see the whites of your eyes, they won't get reimbursed so the result is people taking half their day to get to/from their doctor's office, sit in a waiting room, wait in the exam room and then get 7 minutes with their physician not to mention dealing with all the billing hassles.

Instead, modern day Marcus Welbys are available via electronic means. For example, one physician operating in this new model shared how he hasn't seen a patient with Shingles in five years. His patients simply take a picture of their symptoms with their smartphone and email it to him to verify that they have Shingles. In a few minutes, he can order a prescription and everyone has saved time and money rather than waiting days to get into their doctor. After all, what location is more convenient than one's home?

Some Direct Primary Care providers such as WhiteGlove Health and Organic Medicine Now take it a step further and make house calls that harken back to the days of your family doctor stopping by your house just a few decades ago. Beyond that, they provide simple, yet sophisticated, technology tools for further patient convenience and savings that allow them to cut administrative overhead by 80% compared to a typical medical practice. Rather than patients filling out mountains of paperwork for what seems like the hundredth time, all patient-provider interactions can be done at the patients' convenience whether it's filling out forms, scheduling appointments or requesting medication refills.

Marcus Welby wouldn't recognize mainstream medicine today. In Welby's time, we didn't insure the equivalent of a car tune-up but we do that in most health plans today. Nor did we have insurance middlemen who add no value sitting in between you and your family doctor. Two related items should be done to save individuals, businesses and government a huge sum of money on healthcare.

Make Primary Care More Accessible
IBM and other large employers have studied healthcare costs around the world. IBM alone spends roughly $2 billion per year on healthcare. The findings of their studies came to a surprisingly simple conclusion where countries were getting the best bang for the buck from their healthcare spend: More primary care access led to a healthier population which, in turn, led to less money spent. MedLion, profiled as The Most Important Organization in Silicon Valley No One Has Heard About, has shown they can deliver high quality care with prices that are affordable for low-income workers. This model is referred to as Direct Primary Care (DPC) or Direct Patient Centered Medical Homes (D-PCMH).

As we've seen in Massachusetts, health reform exacerbated a shortage of primary care physicians. Even before that, half of primary care physicians said they would leave medicine if they could. The biggest reason was not being able to practice medicine the way they were trained as a result of insurance-driven productivity goals. A secondary reason was monetary — primary care physicians are the lowest paid physicians. A nice byproduct of Direct Primary Care practices for the primary care physicians is they can practice medicine the way they were trained and by cutting out the 40% "insurance bureaucracy tax" they are taking home significantly more income.

Imagine if we scaled models such as MedLion's and other DPC pioneers such as Qliance nationally. It would be a boon for primary care providers who want to operate free of insurance, as it validates a model that has proven to yield better health outcomes while lowering costs dramatically. Fortunately, one of the least known elements of the new health law may be the most important. It's the Direct Primary Care provision allowing the separation of insurance from day-to-day healthcare to save 40% off the cost of primary care. See Health Insurance's Bunker Buster for more. Showing the bipartisan support for this element of the health reform, a GOP Representative who fought against reform and is an MD has proposed a bill to utilize the Direct Primary Care model with Medicare recipients. This leads into the next item.

Demand A Standard Wrap-Around Insurance Policy
For Direct Primary Care (DPC) to work best, it is paired with a wrap-around insurance policy to cover non-primary care items. Widespread use of the Direct Primary Care model would give insurance companies something that can allow them to underwrite a wrap-around policy to complement what is being delivered via the Direct Primary Care package. This would accelerate the development of independent Direct Primary Care practices as long as they offered the same baseline services (they are free to add things above that to differentiate their service). National scale is critical, as insurance companies can't underwrite for something that is wildly variant. This gets health insurance back to its strength and what insurance is so good for — rare stuff you hope never happens versus insuring the equivalent of a car tune-up.

In summary, a couple simple steps can save hundreds of billions and save primary care in this country which many view as a dying profession. The only downside to this plan is some healthcare providers are resistant to change, but this is a small price to pay for reviving the economy and putting the country on a path where healthcare costs won't bankrupt the nation.

The Accountable Executive, Part 1 - Overview

We believe every senior executive in mid-market companies could benefit from some systematic application of accountability from an outside review process and the development of a system of management.

This is the first article in a six-part series based on the material from the book, The Accountable Executive, expected to be released in the Spring of 2012. In this series, Hal Johnson and Ed Street of LeadershipOne, address what they observe as major contributors to low accountability cultures - which they have observed as a meaningful area of struggle in many mid-market companies - and the antidote. Subsequent articles in the series can be found here: Part 2, Part 3, Part 4, Part 5, and Part 6.

In the mid-market business arena (under $1 billion) there are countless senior executives who have come to their jobs through high performance in their "industrial specialties." They have been very good engineers, architects, sales and marketing execs, attorneys, and even general business practitioners. Along the way they have been elevated to more increasingly responsible managerial positions. Often it is the "momentum of institutional management" that has progressed their careers. By that we mean they:

  • Perpetuated what had gone on before.
  • Followed what their predecessors did and were supported by their peers.
  • Followed their intuition.

Yet, they received no formal executive level development or coaching for the senior, or even chief, executive position.

Okay, let's examine briefly what the upper echelon of most mid-market companies looks like. The board of directors is usually comprised of family members and/or close friends. It exists to meet legal requirements, not assist in corporate governance. Therefore, the board seldom establishes clarity of performance expectations with strong accountability.

This is not always the case. We are aware of a few mid-market companies that have established small advisory boards (not an official board of directors in order to avoid liability issues) comprised of outside, experienced business practitioners that do try to guide and support accountable executive performance. But for the sake of this siers, let's assume many, if not most, do not have boards that establish clarity of the executive leadership function with accountability.

We believe every senior executive in mid-market companies could benefit from some systematic application of accountability from an outside review process and the development of a system of management. We start with a framework that identifies the core function of the chief executive, and then we fill it in with what we believe to be the fundamental business practices that will successfully perpetuate the business. In effect, this material is an accountability job description for the chief executive as well as members of the executive team.

Here's what we see happening at an alarming rate: senior executives are not keeping up with the demand that change is placing on their businesses. When times were good, this deficiency was covered over, but now it can be a major distraction. A lot of their leadership and business knowledge is either dated or dangerously low. As business crises arise, the search usually then starts for the fix. Accountable executives are working diligently well in advance of the next crisis to either avoid or at least be better prepared to address it.

Our current economic downturn is creating an abundance of wake-up calls. Business success in this environment is a hard battle. You need all the training, armament, knowledge and skill you can muster. Our hope is this material will bring to mind — and to practice — those processes and practices that will serve to enable you to become an accountable executive who brings robust leadership and management performance to your organization.

We have organized the material that is included in this series around the five functions we believe are foundational to executive leadership.

  1. Effective Direction
  2. An Effective Leadership Team
  3. Peak Performance Culture and Chemistry
  4. Systematic Performance Management
  5. Change Management / Continuous Improvement

Constantly tending these functions is the executive's job. Sure, there is a lot more involved in being a successful executive, but the health and welfare of the business is dependent on the above functions being well tended. We believe the material presented in the following series of articles will assist those of you who have under-developed management performance to give your business a lift. Injecting high accountability in your culture has high impact on performance. We can't have too much of that.

Authors
Hal Johnson collaborated with Ed Street in writing this article. Ed Street is a LeadershipOne Associate and has over forty years of professional and management experience in finance, strategic planning, general operating management and information systems design & implementation. He has a proven record of competence in achieving performance, productivity and cost improvements in team based environments while enhancing long term value creation. He has significant experience in facilitating and teaching finance, entrepreneurship and strategic planning in both academic and business environments.

Spotlight on Sexual Abuse

A significant problem faced by organizations offering services to youth, elderly, and the developmentally disabled is that individuals who sexually abuse are not easily identified. The majority of perpetrators involved in these incidents at nonprofit organizations have no prior abuse convictions. Also, they are often highly regarded by their peers and the families of those they are secretly abusing.|

The Risk A significant problem faced by organizations offering services to youth, elderly, and the developmentally disabled is that individuals who sexually abuse are not easily identified. The majority of perpetrators involved in these incidents at nonprofit organizations have no prior abuse convictions. Also, they are often highly regarded by their peers and the families of those they are secretly abusing. Data collected from 227 closed claims files over the past 22 years by the Nonprofits Insurance Alliance Group in Santa Cruz, California (a group with 11,000 members nationwide) reveals some interesting insights: 47% of sexual abuse claims involve agency staff members who have abused clients — mostly children, but also the elderly and mentally disabled; 22% of claims arise from client vs. client contacts — virtually all minors; foster home abuse claims account for another 11%; and claims against agency volunteers account for 4%. The data indicates that most claims are without merit, but can be expensive to defend and costly when there has been actual abuse. Almost 75% of the claims closed with no indemnity paid and at an average defense cost of $4,000. The remaining 25% averaged almost $130,000 in paid indemnity and $40,000 in defense expenses. Those costs can put a serious dent in the budget of a nonprofit agency not insured for this special exposure. Insurance Considerations The standard commercial general liability policy excludes coverage for an intentional act, a central requirement for conviction of sexual abuse. In most states, that exclusion extends to the agency responsible for supervision of the perpetrator. In recent years, many carriers have added specific exclusions for any claim of sexual misconduct, and also added those exclusions to Directors and Officers policies. That leaves agencies and their boards without protection for claims that they negligently hired, trained or supervised their staff or volunteers, negligently certified foster homes, or provided inadequate oversight to the activities of clients in their care. Insurance policies that do provide coverage for improper sexual conduct are written on either an occurrence or claims made basis and it is important to understand the difference. Occurrence based policies provide coverage for claims that occur during the policy period, but not before or after. This can be a problem if a claim is presented that occurred many years before the policy went into effect. An occurrence based policy, subject to certain statutes, allows for claims to be reported after the policy expires. Claims made policies, on the other hand, provide protection for any claim presented during the policy period. However, if a claims made policy is not renewed or is discontinued, claims reported after the policy expires may not be covered. Your broker or insurance professional should be consulted about buying an extended reporting period endorsement to address this important issue. Another solution is to carry an occurrence based policy with a prior wrongful acts endorsement. What To Do A nonprofit can also protect itself by establishing an effective screening process for staff and volunteers, and by training them specifically on their responsibilities regarding sexual misconduct. Many of the claims discussed above that were closed with no indemnity paid were the result of the agency's ability to effectively document its screening and training processes and establish that it could not have known of the perpetrator's proclivities.

The Human Resources View Of Health Care Benefits Needs To Change

At one time the view of health benefits was one of satisfying/motivating employees, closely coupled with a notion that health benefits were a great way to attract and retain top talent. Truthfully, that was never really the correct notion of health care reimbursement models.

The Human Resources notional view of health care benefits needs to change and do so quickly.

At one time the view of health benefits was one of satisfying/motivating employees, closely coupled with a notion that health benefits were a great way to attract and retain top talent. Truthfully, that was never really the correct notion of health care reimbursement models.

Early in my benefit career, I was moved into a HR generalist role in a division of British Petroleum. In that job I interviewed candidates for managerial and executive positions. In a short time something became very clear. Triple "A" candidates rarely asked questions about the health plan. They just wanted to know that there was one. Rather, they asked questions to ensure they would be a good fit, also questions about growth opportunities, and so on. When we hired people like that they tended to be successful.

"C" candidates often asked detailed questions about the health plan, time off programs, and disability benefits. The benefit questions were often highly detailed questions about how many chiropractic visits they were allowed each year, minute details about how the deductibles and out-of-pocket limits worked, plus lots of "what if" questions, etc. Once in a while there were good reasons for those questions, but usually not. When we hired such folks, they tended to do poorly in the company and were often the first to go in the next staff reduction.

My first point is if you use health benefits as a "critical" competitive advantage tool in recruiting, you may very well be most appealing to the wrong people.

My second point is that while companies need to offer a well-rounded package of benefits, health costs are a major risk that needs to be managed. Successful benefit executives going forward will understand this critical difference.

Should We Worry About The United States Preventive Services Task Force?

As long as the politicians let this task force operate as it was intended and recruit the best people to serve on it, I am confident that all Americans will benefit. The big problem is that it looks like another attempt by government to control our lives. I prefer describing it as an attempt by the government to protect us from bad decisions by ourselves and those we try to trust, our health care providers. I come down on the side of applauding this effort, not criticizing it.

An Insurance Thought Leadership Exclusive

In recent weeks much has been said about contraceptive coverage and whether or not President Obama should have done what he did. As a result of that, many are wondering whether or not other decisions will be made by this special government-formed task force that is part of health care reform. Is this something else that we should fear? Is there value in it? Why or why not?

First of all, I must offer this caveat: I am presenting my own personal opinions, not that of my company, and not necessarily that of my profession or other associations I am part of. This is a controversial topic and it is likely that some readers will disagree with my comments. I accept that and would like to share my opinion, perhaps adding some light on the topic.

Background
Perhaps a look back might be helpful in understanding the situation or health care system as it stands today. Today, who determines whether or not a service is beneficial to a patient? Most of the time, this is determined by the physician or provider delivering the service. We, as patients, select a provider we trust, and listen to what they recommend to us, perhaps supplement that with a visit to WebMD.com or its equivalent, perhaps ask a friend or relative, but generally listen to our doctor and do what he says. Who is to say that our provider is right? For many years we didn't question this, and if we did we would find a new provider who we did trust.

The reality of the situation is that in many situations our provider might not be making the best choice on our behalf. First of all, there is somewhat of a financial conflict of interest. If they provide the service, they benefit financially. If they don't, they are paid less. Will the decision be impacted by the financial outcome? Secondly, providers are heavily impacted by their current practice style, their training and what they are familiar with. Studies show that practice patterns vary between various markets, and even within a single market. What makes sense to one provider doesn't to another. What is the norm in one city can vary significantly from that in another. What makes sense to one specialty may conflict with another specialty. Today we really don't have any single authority that we can rely on and trust. So by default we listen to those we trust who might not be as trustworthy as we think and believe.

Potential Solution
Realizing the potential for different opinions and the lack of a trusted source, individuals and organizations began a concerted effort to try to define what is right and wrong. Company A started to build its set of criteria or practice guidelines while Company B developed theirs. Provider Specialty C developed theirs, while Provider Specialty D pursued another path. Individual health plans developed their own or licensed one or more sets from various vendors and other sources. The government even established a clearinghouse (i.e., Agency for Healthcare Research Quality) to monitor and keep track of various guidelines. The proprietary ones were copyrighted, oftentimes requiring substantial license fees to use. Others were made available to all at no cost.

Through this effort a concept called “Evidence Based Medicine” emerged which described a process where the best literature and evidence available was used to develop the guidelines. Through this process, evidence is graded (i.e., from most reliable to least reliable) with specific information synthesized and guidelines produced. Some guidelines were built around a desire to maximize efficiency and control costs, others where focused in other areas. The significant effort has resulted in very valuable information from competing sources, potentially with differing opinions. This source of information provides the provider community additional information for it to make a decision; however, some will not have access to all of the information for a variety of reasons noted above.

The Big Dilemma
So we are now faced with a big dilemma. If we leave it up to individual physicians to make the choice for treatment, we are faced with significant personal bias, perhaps with some limitations in a valid rationale to make the necessary choices. If we rely on the vast guideline options and choices, we have more useful information to help make the choice but are faced with what do we use, how do we use it, and what should we use. Who is going to sort through the information to help assure us the right choices are being made? Can we rely on the provider to do this? Do we rely on the health plan? Can we rely on the internet? Today there is no real source such as the “Good Housekeeping Seal of Approval” for health care guidelines to tell us what is the right answer. What do we do?

A Surprise Solution
Buried in health care reform legislation is an interesting group called the United States Preventive Services Task Force. The primary purpose of this group is to make the decisions we talk about above. To keep the government out of the decision making process, this committee is somewhat independent of regulation by the government. The members of this panel are charged with making good decisions. The use of a national body will maximize the likelihood that this can become the standard. It won't be biased from a health plan's profit motive. It won't be biased by the financial bias of our personal provider. It will rely on the best information available to make the right choice. It will include an important emerging area called Comparative Effectiveness where emerging technologies can be compared to determine what works the best.

It isn't designed to prevent us from having something done we would like to have done, but if not on the list, we might have to pay from our own pocket. It will become the standard of reasonableness. It isn't something to be feared as long as it can remain somewhat independent and focused on pursuing the right answers. Periodically I am pleased to find government-developed, valuable solutions to concerns I have about the health care system (e.g., RBRVS relative values for pricing of physician services, risk scoring, etc.). This Task Force is another one of these in my professional opinion. This may be hard to believe to some who have limited trust in what the government has done or is doing.

Caveat
As long as the politicians let this task force operate as it was intended and recruit the best people to serve on it, I am confident that all Americans will benefit. The big problem is that it looks like another attempt by government to control our lives. I prefer describing it as an attempt by the government to protect us from bad decisions by ourselves and those we try to trust, our health care providers. I come down on the side of applauding this effort, not criticizing it.

You Run a Community-Based Nonprofit – What to Do When You Have an Accident, Claim or Lawsuit, Part 2

This is the second of a two-part series on what non-profits should do when a lawsuit is filed against them.|

This is the second of a two-part series on what non-profits should do when a lawsuit is filed against them. Part 1 of this series can be found here. What Are All of These Papers? Let's look at the lawsuit itself. When a lawsuit is served, there are two different parts: a summons and a complaint (or some other name). The summons is a notice to you and/or your organization that you have been sued. The complaint tells you what the suit is about and what the person suing wants. The Summons: The top paper is the summons. The summons is a very important piece of paper. It tells you who has filed the lawsuit, what attorney represents that person and what court the suit will be heard in. The summons will also tell you exactly who is being served. The Complaint: The complaint is all of the rest of the papers you receive except for the top page, or summons. In some cases other documents will be included with the complaint. A statement of damages (usually a huge number, unrelated to the merits of the case), and a notice from the court extolling the virtues of arbitration or mediation are the most common attachments. The complaint is a description of all of the bad things you are supposed to have done to the plaintiff and what they have suffered as a result of your actions. Generally speaking, it is not a good idea to read the complaint right away. Most people get very upset at what the lawsuit claims to have happened. Remember, lawsuits are all written in the same manner and use the same type of language. Many counties have adopted a "fill in the blank" form complaint where boxes are checked and a few paragraphs describing the particular event leading to the specific lawsuit are inserted in the appropriate places. Remember that most of the language used is standardized from complaint to complaint and while this particular one may rant and rave about you or your organization, you will be comforted to know that all complaints rant and rave in the same fashion. What Are the Steps in the Lawsuit Process? What is Discovery? Discovery is the process during which both sides find out what the other side knows. There are several standard and common discovery procedures which occur during the course of a lawsuit. Initially, your attorney may wish to meet with you or the relevant staff people and get a feel for your version of what happened. If the incident that is the basis of the lawsuit was already investigated by a representative of your insurer, the attorney assigned to the case may not need to meet with you right away. Do not, under any circumstances, speak with or give information to the plaintiff, or his or her attorney. Interrogatories: There are two types of interrogatories, form and special. Form interrogatories are just what the name implies; standardized questions on a preprinted form. In most cases, form interrogatories can be answered by the attorney with a little help from you. Your attorney will send form interrogatories to the plaintiff(s) that ask the injured party for the names and addresses of all treating physicians, documentation of any lost earnings claimed, and so on. Special interrogatories are questions that address more specific issues concerning the particular lawsuit. Your attorney will probably need your specific help in preparing answers to special interrogatories. It is very important to give prompt and full attention to these questions so that your attorney can do the best possible job of representing you and your organization. When you receive the interrogatories, either form or special, you are required to answer them to the best of your ability. These answers are under the penalty of perjury. This means that lying or omitting information may be grounds for criminal action. There will be some occasions where obtaining or finding old records will be very difficult, time consuming, and a real pain in the neck. Unfortunately, the courts do not recognize any of these as legitimate reasons for not providing all of the documents or information requested. We have found that the sooner you attack this project, the easier it is to complete. Again, if you are having a problem complying with the request for documents, contact your attorney sooner, not later. Depositions: A deposition is the giving of testimony under oath. This occurs outside of court and before trial. In most lawsuits, depositions are scheduled informally and without subpoenas. The plaintiff's deposition usually is conducted at the plaintiff's attorney's office and the defendant's deposition in the office of the defense attorney. While your attorney will make every effort to accommodate your schedule, you must attend a deposition for which you have been scheduled, no matter how inconvenient. Depositions may last anywhere from less than an hour to several days. Most are completed in half a day. Your attorney will meet with you before your deposition to go over the process and to review what questions are most likely to be asked. This is also a time to ask any questions you have concerning the case. Depending on the case, there may be depositions of people on your staff or from your organization. It is very important that your attorney have the cooperation of your organization and that you make your staff available when necessary. Will the Case Go to Trial? Probably not. The good news is that about 97% of all lawsuits are settled or resolved in some fashion before going to trial. The remaining 3% are tried to verdict. There are several processes by which resolution, short of trial to verdict, can occur. Mediation: One of the most common ways to settle a lawsuit before trial is mediation. The parties agree to have a neutral third party manage discussions leading to an agreement to settle. Mediators do not decide cases. The parties reach agreement with the help of the mediator. In some cases you may not even have to attend the medication. Arbitration: Other cases are resolved by the use of arbitration, either binding or nonbinding. In the case of binding arbitration, the parties have agreed that whatever finding the arbitrator makes is permanent and agree to abide by those decisions. In non-binding arbitration, the decision of the arbitrator is advisory only. Trial: Most cases that actually go to trial, go for one of two reasons. One reason is that the plaintiff wants far too much money for the nature of the injury and no agreement can be reached between the parties. The other common reason cases go to trial is when the defendant is convinced that either the obligation owed to the plaintiff was met, or that no duty to the plaintiff ever existed, and the plaintiff has no right to recover anything from the defendant. It is very important that you or an appropriate member of your organization be present in the courtroom during the trial. We understand that the entire lawsuit process, up to and including a trial, is a major inconvenience. But, it is very important to the success of your lawsuit that each step of the process is taken seriously, including attending the trial, if necessary. Your attorney will make every effort to accommodate your schedule, but often there is little that can be done to change the court's schedule. Summary
  • Stay calm
  • Don't admit fault
  • Promptly report to your broker

You Run a Community-Based Nonprofit – What to Do When You Have an Accident, Claim or Lawsuit, Part 1

This is the first of a two-part series on what non-profits should do when a lawsuit is filed against them.|

This is the first of a two-part series on what non-profits should do when a lawsuit is filed against them. Part 2 of the series can be found here. When Can a Lawsuit Be Filed? In each state, there are various statutes of limitations or time limits in which a lawsuit must be filed for damaged persons to protect their claims and preserve their rights. In cases claiming bodily injury, persons who are injured must have concluded their claim within a specified time from the date of the incident, or file a lawsuit by the close of court on that specified date if they wish to pursue the claim. Minors enjoy additional protection under the law. They have until a specified time past their date of majority to file a lawsuit, regardless of when the accident happened. The statute of limitations for property damage or breach of a written contract may even be longer. In some cases, people with mental infirmities may have no applicable statutes of limitations. What Court Will Be Used? Each state differs and some have names you may not have heard before. In California, for example, there are two levels of state courts where most of the lawsuits will likely be heard. These are Small Claims and Superior Courts. Small Claims Court has a jurisdictional limit, usually in the range of $5,000 to $7,500. Claims for larger amounts cannot be filed in Small Claims. Attorneys are often not permitted in Small Claims Court. The parties represent themselves. Superior Court is where most of the lawsuits in which nonprofits are likely to be involved in will be filed. There is no limit to the amount of damages that can be awarded in Superior Court unless there is a specific statutory cap. Federal Court is the most likely place for employment cases involving allegations of discrimination or harassment. Cases involving out-of-state parties are also candidates for Federal Court. Where Will the Lawsuit Be Filed? The geographical location of the court depends on where the accident or alleged wrongdoing happened, where the plaintiff lives, or where the defendant does business. The lawsuit is usually filed in the county where the event happened, but there are exceptions. If the plaintiff lives in a different county, the court may permit the lawsuit to be brought in that county rather than the one where the event occurred. How Will I Know a Lawsuit Has Been Filed? In fact, you may have a lawsuit "filed" against you and/or your organization but not know about the lawsuit until it has been "served." Sometimes lawsuits are filed with the court to preserve the "statute of limitations" discussed earlier, but not immediately served. Typically, you will not know that a lawsuit has been filed until you are served. You may be served with a lawsuit when a process server shows up on your doorstep or when you receive a large package of unfamiliar documents in the mail. As a practical matter, it is useless to try to avoid being served a lawsuit. If you or your organization have been named in a lawsuit, you or your organization will eventually be served. It does nothing but antagonize the parties when people try to avoid service or assume that service has not been completed simply because they did not touch the papers left on the desk, or because they received the papers via the mail. Keep in mind that service by mail is recognized by the courts and the clock starts running five days after the date those papers were mailed to you. If they are left on your doorstep and not given to anyone in person, service is probably still valid and the clock has begun ticking. Beat the Clock The first thing to remember when you are served with a lawsuit is, "Don't panic!" If you have documented all incidents properly as described previously, and forwarded this information to your insurance broker, this lawsuit will probably not be a surprise to you or your insurer. The second thing to remember is that the clock is ticking. What clock? The 30 day clock. In most states, the person or organization served has 30 days from the day the suit was served to respond to the lawsuit. While it is possible for the defense attorney to request a second 30 days from the plaintiff attorney, he or she is not obligated to grant it. In most jurisdictions, no extension can be granted without notice to and approval of the court where the suit is filed. In Federal Court, you only have 20 days from the date you were served to respond and extensions are rare. Because of these very serious time constraints, it is important to take the following steps immediately upon being served with a lawsuit:
  • Note the time and date you were served with the lawsuit directly on your copy of the lawsuit.
  • Make a copy of all of the papers you have received, keeping one for yourself and sending the original to your insurance broker.
  • Call your insurance broker to let him or her know that lawsuit papers are coming.
What Happens if I Don't "Beat the Clock?" It is extremely important to get a copy of the lawsuit to your insurance broker immediately because the plaintiff's attorney can enter a default judgment against any defendant who is late in filing a response by even a single day! This means that the court records a judgment for the full amount of the damages claimed by the plaintiff against you or your organization. The judgment is as final as a verdict after a trial. The judgment gets recorded even though there has been no trial, no discussion, no showing of fault, no anything. It gets filed just because you didn't respond in the time required. Period. There can be relief from a default judgment, but the longer it is in place before anyone challenges it, the harder and more expensive it is to get the default judgment set aside. Remember, insurance policies typically require the insured to notify the insurer immediately when ever a claim is made or a lawsuit received. Failing to make proper and prompt notice to your insurer can void the contract and deprive you of insurance coverage. Every organization should designate one person to accept service of lawsuits. All employees, volunteers, directors and officers should be instructed not to accept service, but to refer service to the appropriate person. The "process server" who comes to deliver the lawsuit should be told where he or she can find that person. Remember, it never improves the situation to try to evade service of a lawsuit. It is best to establish a protocol so that these important papers are delivered to the right person immediately. What if the Media Calls? If your nonprofit organization is named in a lawsuit, even one that is unjustified, it has the potential to damage your reputation in the community. Adequate preparation is essential for an effective response to the media during a crisis. The following guidelines will enable you to turn a potentially risky activity into an opportunity for your organization:
  • Designate a media spokesperson (and at least one back-up). These persons should be trained in advance of a crisis about what is and is not appropriate information to release to the media.
  • Make sure that everyone knows the identity of the designated spokespersons(s). Nonauthorized persons, including staff, volunteers and board members, should not talkto the media.
  • Do not admit wrongdoing. Keep in mind that anything said to the media by anyone in a position of authority can be used against the organization in any litigation that results. As tempting as it might be to admit liability to "get it off your chest," you can be sure that this admission will greatly diminish your attorney's ability to defend you in a lawsuit.
  • Remember that "no comment" says a lot. "No comment" fills pages in the minds and imaginations of readers and viewers. What is the organization trying to hide? Isn't there anything it can say about this dreadful event? Count on the fact that a skillful reporter will find someone to comment about the incident — including your organization's handling of the crisis. Remember to think carefully about what you say and what you don't say.
  • Stay calm and "on message." The key is focusing on the message you want to deliver. Advance preparation is necessary.
  • Deliver a positive, truthful message about your organization. While it is important not to evade a reporter's questions altogether, always begin your response with a positive message about your organization which incorporates your commitment to safety. For example, "The mission of the Youth Activities Center is to promote safe recreational activities for disadvantaged children in this community. Our commitment to safety is reflected in our safety training programs for athletes, rigorous screening and training program for volunteer coaches, and provision of appropriate safety gear for all participants."
  • Do not improvise your answers. If you do not know the information asked by the reporter, admit that fact and if appropriate, pledge to find out as soon as practical. Establish a time and place to provide information updates.
  • Show concern and compassion. Compassion for victims and those who are disadvantaged by circumstance, physical disability or economic status is at the heart of the work of many community-based nonprofits. The public expects a nonprofit spokesperson to demonstrate compassion. Never dismiss an incident where victims are involved as inconsequential.
Which Insurer Will Handle the Lawsuit? You have been served with a lawsuit, identified and recorded the date you were served and sent the papers along to your insurance broker. Now what? Your insurance broker will forward it to the appropriate insurers, depending on the type of claim and whether the lawsuit is one that qualifies for defense by an insurer. If there is a question as to whether or not an insurance policy will defend the lawsuit, your broker will send that lawsuit to any insurer that might have an obligation to defend or indemnify you or your organization for the claims contained in the suit. If your insurer determines that the policy does not cover the lawsuit in question, it must tell you that in writing and explain exactly why the policy does not apply. When an insurer does have an obligation to defend the lawsuit, it will send you a letter telling you what lawyer it has hired to represent you and/or your organization. In some cases, your insurer may send you a letter that says that it agrees to defend you, but only under certain conditions. That is called a "reservation of rights" letter. What is a Reservation of Rights Letter? A reservation of rights letter explains that, because some causes of action in the lawsuit are not covered by the policy, the insurer will defend without becoming obligated to pay damages awarded as a result of acts not covered by the policy. It is important to remember that the reservation of rights letter does not mean an insurance company is not going to defend the organization. It means that the insurance company is going to defend the organization, but the company is making sure you understand that some of the allegations in the suit may not be covered. If you feel that a reservation of rights letter was sent incorrectly, or you have additional information which may have bearing on the case, you should write to the insurer or have your broker write to the insurer and ask for another review of the coverage question. In some rare instances, there could be a conflict of interest between you and the insurer, or it could become clear that the majority of damages claimed are the result of uncovered acts that did happen but are not insured under the policy or are not able to be insured as a matter of public policy. In those instances, the insurer must tell you and must offer you the option of a separate attorney at the insurer's expense.

It's 2012 - Let's Recap

Most of the clinicians who over-test and do a poor job of getting diagnoses and treatment plans right aren't going to improve until someone takes their patients away. Period. The question is, how to take their patients away. There's a way.

Let's hit a few highlights of 2011. In the past, I've described certain scary trends in health care in the United States:

  • US spending on health care is lapping our peer countries while our life expectancy is declining comparatively. This is a major drain on our economy and is costing us jobs.
  • We have a huge amount of unnecessary surgery and testing. It's getting worse, not better. (Read The Treatment Trap by Rosemary Gibson and Janardan Prasad Singh for real life examples.)
  • In health plans today, a small number of members are spending most of the money. I've seen very large plans in which 10% of members are spending 80% of plan dollars. These "outliers" are usually in the middle of serious acute health crises and are way beyond wellness, preventive, value-based purchasing, Health Savings Account incentives, consumer driven health care, public/private partnerships, etc. "Outliers" often need specialized tertiary or quaternary care.
  • There is huge variation between tertiary and quaternary referral centers in terms of getting the diagnoses right, having the best outcomes, and saving lives. The best referral centers are the most cost effective too.
  • Most specialists in the United States don't coordinate care or diagnoses. As a consequence, a large number of "outliers" are misdiagnosed and/or have bad treatment and surgical plans. This is a huge opportunity for benefit plans.
  • Alas ... we know that true reform can never and will never come from Washington. Members of Congress will see to it that clinics and hospitals in their districts are protected.
  • Health insurers understand this but are often not supported by corporate benefit executives when they delete poor performing doctors and hospitals from their networks.
  • Most benefit executives are looking for the deepest discounts when selecting a network, not the lowest net cost, a big difference. Lowest net cost comes from getting diagnoses right, avoiding bad surgery, and coordinating care. Those traits trump deepest discount every time. A small but growing number of large corporations are getting this one right.
  • If the system is to be reformed it will be done by corporate benefit executives. Congress can't. Insurers can't.
  • Most of the clinicians who over-test and do a poor job of getting diagnoses and treatment plans right aren't going to improve until someone takes their patients away. Period.

The question is, how to take their patients away. There's a way.

If you are a benefit executive:

  • Ask your Third Party Administrator, carrier, or Preferred Provider Organization to start figuring out who the "A players" are and load your networks with them. Ask them to identify the "C clinicians" and begin the process of deleting them from your network. The savings potential from this is huge. Plus, you will be protecting your employees and improving the quality of their care.
  • Educate your employees about this.
  • For your outlier population, implement centers of excellence for their specialized needs.
  • If your company has more than 5,000 covered lives or so, you should develop and implement direct contracts with the best of the best centers of excellence, ones like the Mayo Clinic and the Cleveland Clinic. Great companies like Pepsi, Walmart, and Lowes have done just this, plus many others. You can do it too.