Tag Archives: medical malpractice

Thought Leader in Action: At U. of C.

An organization the size of the University of California system—10 campuses, five medical centers, a student body of 239,000 and nearly 200,000 faculty, staff and other employees—requires the close attention of individuals who help assess and manage risk and insurance. Kevin Confetti, the UC deputy chief risk officer in the Office of the President, is one of those people who keeps the University of California operating and its employees satisfied.

Born and raised in Pittsburg, CA, Confetti grew up in a hardworking blue-collar family with parents who worked at DuPont and at U.S. Steel. While in high school, he aspired to be a teacher and football coach, and he attended UC Davis, where he played on the varsity football team and graduated with a B.A. in rhetoric and communication. After graduation, he hung up his cleats and got his first real job working in claims adjusting for Cal Comp, where he found he really liked the variety of work. That experience led him to promotional opportunities at Fireman’s Fund, Ernst & Young and Octagon Risk Services. Serving for five years as a claim unit manager at Octagon—the UC system’s third-party administrator (TPA) at the time—Confetti was hired by the UC system in 2006. Now, he’s in the process of achieving his ARM (Associate Risk Management) designation.

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Kevin Confetti

Within the UC system, Confetti reports to the chief risk officer, Cheryl Lloyd, and he provides overall management of self-insured workers’ comp (aka “human capital risk”), employment practices, general and auto liability, medical malpractice, construction risks and $50 billion of property risks. Confetti said the UC system’s various campuses and medical and research facilities are actually quite autonomous, while the Office of the President strives to manage the overall risks without using too many mandates. It’s a program that responds to needs as it sees fit, and it helps set up system-wide policies.

To do his job well, he said he needs to be a good communicator, a good listener and someone who facilitates collaboration and cooperation among his various facility risk management teams. He described the job as, essentially, convincing his campus teams that something is the right thing to do.  He loves the variety of what he manages, and his passion is to save the UC system money, whether it’s $1 or $1 million, so those savings can go to the UC system’s mission. Confetti said, “Leadership requires the ability to convince others in the UC system of the value of our propositions and decisions.”

With an in-house risk management staff of 10 to 12, Confetti serves each campus risk management department (ranging from about two to three at UC Merced to 12 at UCLA) as clients. The UC system uses Sedgwick as its TPA for its self-insured programs, which provides in-depth metrics, data mining and monthly and ad hoc reports. Sedgwick also provides assigned analysts in virtually every UC risk area.

Confetti also manages the UC Risk Management Leadership Council, which meets monthly on various campuses. In addition, his office hosts a Risk Summit conference once each year for every campus and facility risk management team. These teams come together to discuss trend statistics and emerging issues that are key risk factors for each unit as well as the overall UC system. While each campus team does things a little differently, they all operate with a similar mindset that fits within the UC system’s overall objectives.

At the moment, Confetti’s biggest area of concern is cyber security; cyber issues can be difficult to identify and prevent and can be one of the most destructive risks, threatening things such as power grids and other infrastructure. The UC system employs several different IT structures, and, because most insurance coverage excludes cyber risk, the risk is extremely dangerous from a risk manager’s perspective—especially given the size and nature of electronic data managed by the UC system.

A second issue Confetti is currently concerned with is the risk to students and faculty from active shooters or other terrorist-minded groups.

A third risk he’s focusing on is the use of drones; Confetti said the federal government, businesses and institutions haven’t been able to effectively manage the growing number of drones operating freely in the U.S.

Confetti said he would tell newcomers to risk management that technology continues to propagate new risks. He advised, “Be willing to take on risks, but learn from your mistakes and know that you don’t have all of the answers. You have to take risks to move forward, but negative experiences should provide the knowledge and skills to mitigate risk more effectively. … Be flexible and open to new ideas. … Avoid reliance on statistics. Data will give you a trail of facts like breadcrumbs to show you what trail you need to follow. But get out of the office and make the rounds to see and hear what’s going on.”

The Dangers Lurking for Health Insurers

Heathcare is changing, creating opportunities but also dangers. Here is where healthcare is changing and why you should care in the insurance industry.

Providers. The physician you once saw and had a relationship with is now maybe a physician assistant or a nurse practitioner. Healthcare has turned care over to “mid-levels” and concentrated physician time on revenue-intense practice like surgeries or high relative-value-unit (RVU) patients such as elderly, as a reaction to the pressure on revenue and proliferation of data, The coding needs to be high for a patient to get physican attention, and the low coders, the healthy, are attended by mid-levels.

A mid-level is paid only a fraction of a physician. Makes sense? Expect care to reflect the nuance of matching. The result will be variation in diagnoses in health benefit insurance and workers’ compensation.

Isn’t there better data now? Yes, but who has time as a caregiver to be giving it thought? The ACA has driven more people to buy insurance, but that means less time per office interaction. Hospitals have bought physician practices, which now face new effectiveness expectations such as referral level and relative value unit per caregiver.

Caregivers are under enormous pressure to produce at your expense. Who can question “do no harm”?

Insurance industry. If you are a medical malpractice insurer, how does higher-deductible health insurance affect you? How does higher premium for health insurance mean you are at higher risk in offering medical malpractice? Can data be working against you?

The onus of care is now on the patient, and the patient is relying on engagement and education from anywhere it can be found. Google and the Mayo Clinic have teamed up to help by presenting search results verified by suitable medical communities, but the patient is on her own under the direction of a healthcare practice that is inundated with new patients and lots of data she can’t get to. And don’t forget that the attention is now being guided away from your physician. The standard of care has not changed, but the frequency of visits has lowered, and the time for every visit has decreased. Less care, too much data, too much patient expense and the same expectations of medical care. Not a picture of profit in medical malpractice. Maybe time to raise the price?

Workers’ compensation will get hit with increase in frequency and severity as care is slid to less dependable providers. You get what you pay for. One miss is worth a thousand hits in health. Providers are seeing patients too briefly to be always trusted, and the data…the providers are not even looking at the data. They are too busy plugging in data to appropriately spend effort on what it means.

General liability is a scarier risk as more patients mean more chaos and more visitors to the facilities. Who is watching security when the waiting room is packed up? Who is shoveling the lot? By the way, a patient fall is either medical malp-practice or general liability. Forget the $1,200 annual GL premium. Think $2,000.

Cyber liability is a huge concern as hackers get more sophisticated and the stakes in stolen health profile skyrocket.

Insurers can be venture capital. VC has figured out that there is a ton of money in health, but do they know much about health and what it does for insurers? Aetna’s CarePass was a great idea that needs to go on. Insurers should get on board with funding innovation. The VC money is slow. Technology is a VC specialty, yet health desperately needs people in play who know health. Physicians generally are not greatly interested in innovation. A tremendous opportunity is here for insurance companies to innovate with technology. Silicon Valley and insurance could team up and solve lots of issues. Now that it Google is out there, it is a great innovator in insurance. The opportunity is to bridge technology and insurance acumen. But VCs like to invest in people they know, like technology folks, so a gap indeed exists. Just saying.

Patients. High deductibles and high premiums for health insurance, combined with busy caregiving and new technology to grasp, mean the patient has a place at the healthcare table, finally, but no one to help much. It is up to the patient to take care of the patient. And your caregiver is very busy now that everyone has some kind of insurance. What a time to be finally given a place at the table.

How long of a visit does a patient get with his provider? Is it enough to rightly ascertain what is going on with a patient? Is surgery really the solution? Does chiropractic seem all that bad, Mr. Insurer? Does the caregiver get managed by how many referrals it proffers? Does the patient need to call the caregiver every time there is a stuffy head? Waiting rooms are filled, and time with the caregiver is down. Having a place at the table should mean more.

Innovators. Lots of techies are going after health care. Do they know healthcare? Not as much as you would hope. The right approach is to find innovators who get insurance and health and then parse technology. Not the other way around. Innovators look for faster capital and more knowledgeable partnership.

Make the data personalized and simple, as even caregivers cannot find time to analyze data. Health has a consumer face today, and lots of people looking for care guidance. The consumers want it simple and mobile. Anybody think insurance could be an available partnership candidate?

Healthcare vertical recombination is a major opportunity in insurance. Are you ready to lead?

Electronic Health Records Hurt Care

Patient care as we know and expect it will diminish because of electronic health records (EHR) requirements. Society will suffer a slow degradation of artful interactive provider attention in deference to “data-field” medicine.

I am not simply referring to the very real and challenging issues in the technical application of EHR systems. Rather, I point out a more serious and insidious future threat to the actual human aura in medical practice.

There exists an unintended but real incentive for doctors and clinicians to consider task-completion as clicking through the data interface rather than interacting with and treating the patient. Legal requirements, reimbursements and potential penalties force EHR to top priority. In turn, clinicians as EHR users become more aware of and anticipate the truncated, template-driven and limited means of expressing case events via electronic reports. Therefore, their interaction with patients may be truncated.

I know this sounds callous and insulting to all good medical providers. To them, I say no insult is intended, and the fault of this perverse incentive is not theirs. They might honestly assess their experience and the actions of peers and associates within their practices given the advent of EHR. To providers, I ask: What about EHR might be sucking the creative life out of your optimal vision for the practice of your specialty?

My most stark encounter with this reality comes from a chance discussion with a longtime friend. She is a nurse practitioner who, for decades, has treated both ER and family-practice patients. As family friends, we never talk shop, and this particular conversation was not solicited by me. I politely asked, “How’s it going?” and got a surprising, soul-baring burst of frustration.

She expressed disdain. She prides herself as a master of triage, symptom investigation, on-the-spot research and communication with involved family members, and she desires to take the wide approach to patient situations as a service to them and to the doctors or specialists who may eventually carry the case, but electronic records don’t allow the narratives or collective points of data she would prefer. As such, her value is diminished, and the patient ultimately gets poor attention.

As she described her situation, I began to understand the rigid decision-tree “intelligence” in narrowing prompts for information based on how case records are initiated. She has persevered and found cumbersome work-around methods (such as editing previous fields to change next options, etc.) to combine or add issues or thoughts to a record beyond the template’s desired straight line of thought. Unfortunately, she explained, taking extra time to do anything is neither advisable nor encouraged because of the volume of patients requiring care.

Quick Tip: The Want for Data Should Not Put the Cart Before the Horse

As a foreshadowing about healthcare in general, consider what the supreme focus on automation and data collection has done to workers’ compensation. I have written extensively about the advent of electronic claim systems, over decades, reducing the adjusting job from that of an intelligent, intuitive personal-interactive specialist to the current task-level data entry clerk. We are now well into the post-paper-file generation of claim adjusters who know their job only as data-interface. Will medical clinicians meet the same fate when our current generation of providers, like my friend, move on? Will future clinicians, knowing only electronic records, assume that the decision tree of the EHR interface supersedes intuitive medicine?

Let’s hope not. Unfortunately, a simple Google search for “problems with EHR” will not sit well with anyone who embarks on some research in this area.

In claim adjusting, as in medicine, we need to intelligently feed the hunger for data but rail against a perverse desire to let automation increase case volumes or assume the template is sacrosanct. I am certainly not against all the good that electronic medical records bring to the party. However, we must first let practitioners do their jobs, not let “data screen medicine” dumb down patient care.

Perhaps provider-run coalitions should dictate standards for ever-improving EHR frameworks and interfaces so their highest-quality, real-time nimble intelligence can be best captured in all patient events. I know at least one nurse practitioner who has a lot to say on that subject.

How a GOP Congress Could Fix Obamacare

Republicans are primed to take over Congress. A new FiveThirtyEight.com projection gives the GOP a 60% chance of winning the Senate this fall. And, according to RealClearPolitics, there’s virtually no chance Democrats will take the House.

If the GOP succeeds, public displeasure with Obamacare may be why. A recent poll from Bankrate.com found that more than two-thirds of voters say that Obamacare will play a role in how they vote in the coming election. Nearly half said it would influence them “in a major way.”

Of course, the next Congress has little hope of repealing Obamacare outright. The president would just issue a veto. Overriding it — though technically possible — would be difficult with an intransigent Democrat minority.

A GOP majority should instead focus on incremental reforms with bipartisan support — like tax cuts, regulatory reforms and repeal of some of Obamacare’s most unpopular mandates. That’s the most effective way for lawmakers to move our health care system toward one that puts markets and patients at its center.

Step one? Repeal Obamacare’s medical-device tax. This 2.3% excise charge on all device sales is expected to collect $29 billion over the next decade, according to government data.

Device firms are compensating by cutting jobs. Stryker, for instance, has cut 5% of its workforce — about 1,000 people. Zimmer Holdings has chopped 450 jobs. In total, Obamacare’s device tax could kill 43,000 jobs, according to Diana Furchtgott-Roth, an economist at the Hudson Institute.

Getting rid of the tax is a no-brainer. In March 2013, 79 senators — including 34 Democrats — approved a non-binding resolution calling for its repeal. It’s time to make that vote binding.

Second, a GOP-controlled Congress should strengthen health savings accounts. These financial vehicles allow patients to stow away money tax-free for medical expenses. HSAs are typically coupled with high-deductible health insurance. Patients bear the cost of routine care, and coverage kicks in when needed, like in the event of a medical emergency.

HSAs give patients a financial incentive to avoid unnecessary medical expenses. Converting someone to HSA-based insurance drops her annual health expenses by an average of 17%.

This year, 17.4 million people are enrolled in HSA-eligible plans — a nearly 14% increase over 2013. Among large employers, 36% now offer HSA/high-deductible plans, up from 14% five years ago.

Annual HSA contributions are currently capped at $3,350 for an individual and $6,550 for a family. Congress should raise them to $6,250 and $12,500, respectively. And patients with HSA coverage through the exchanges should be eligible for a one-time, $1,000 refundable tax credit to be deposited directly into their account.

Third, the new Congress should reform medical malpractice. Frivolous lawsuits and the threat of baseless litigation are increasing health costs and degrading quality of care.

Excessive malpractice suits drive “defensive” medicine, in which doctors order unnecessary procedures and tests simply to shield against accusations of negligence. This practice costs the country an estimated $210 billion every year, according to PricewaterhouseCoopers. Injecting common sense into the medical tort system would bring down that bill.

Earlier this year, the House Energy and Commerce Committee passed a bill that restricted lawsuits against doctors by, among other things, limiting non-economic damage judgments to $250,000. It was effectively ignored once it moved out of committee. Republicans should dust it off and pass it.

Finally, the GOP should repeal Obamacare’s employer mandate, which slaps midsize and large companies with a fine if they don’t provide sufficiently “robust” health coverage to full-time employees.

The mandate is destroying jobs. Employers are holding off on hiring and ratcheting back workers’ hours to avoid additional insurance costs. A Gallup poll found that 85% of businesses are not looking to hire. Nearly half cited rising healthcare costs.

There’s ample political support for repealing the employer mandate. The administration has already unilaterally — and maybe illegally — delayed its implementation. Several prominent backers have openly called for repeal.

All of these reform ideas are imminently actionable. They could find broad bipartisan backing and avoid a veto. Most importantly, they would move U.S. healthcare closer to a consumer-driven system, with patients empowered to control their own spending and market forces pushing costs down.

Financial Reporting Of Medical Malpractice Self-Insured Losses

Healthcare entities, or groups of physicians (through a captive), may self-insure losses to better control the costs of medical malpractice insurance, particularly when insurance premiums rise. Self-insured losses are typically estimated by an actuary, who will provide an unbiased estimate of the loss reserves and can also forecast losses for the next policy period for purposes of budgeting and assessing the feasibility of self-insuring, while an auditor will ensure full compliance with accounting and financial reporting standards. The following will provide background information and points to be discussed with the actuary and auditor.

Common Coverages

In a self-insured program, losses are retained by the program up to the self-insured retention amount, while losses greater than the retention amount are the responsibility of the excess or reinsurance policy. A claims-made policy provides coverage for claims that are reported within the policy period; claims reported after the policy expiration date are not covered. Most programs continually purchase claims-made policies for reportings in subsequent years. Occasionally, when a program changes excess carriers, it may purchase a tail policy for prior acts that have yet to be asserted. Physicians that purchase commercial claims-made coverage may also purchase a tail policy when leaving an organization or ceasing to practice.

When following guidance in the Financial Accounting Standards Board’s (FASB) Accounting Standards Codification (ASC), most of these same entities record the self-insured liability in their financial statements on an occurrence basis. An occurrence basis is determined by when the incident happens, or occurs, regardless of when it is reported. An occurrence year can also be viewed as the combination of claims-made losses and tail reportings for claims occurring during a year that are unreported. It is important to note that if the physicians are covered on an occurrence basis by an entity (hospital or captive), but the entity purchases claims-made coverage from a commercial carrier for its physicians, then the entity is liable for the tail reportings.

Unpaid Claim Liability And IBNR

The self-insured liability recorded in financial statements has two main components: 1) case reserves on known claims and 2) an incurred but not reported (IBNR) provision for unknown losses. The case reserves are determined based on the most current available information about the known claims while IBNR losses are usually estimated by an actuary. The IBNR losses account for case reserve development on known cases, pure late reportings, reopened cases, and pipeline claims (reported but not yet recorded in the system as a claim). Liability is simply losses that have occurred but are unpaid.

Actuarial Theory

Actuaries utilize models, centered on the theory of consistency and the assumption that the past is predictive of the future, in order to project losses of a program. This includes similarities in reserving strategy, payment philosophy, homogeneous risk management exposures (same types of procedures, same mix of specialties and maturities of physicians), and other program design characteristics. Any intentional change in a program by management should be reported to the actuary to avoid redundant or inadequate estimations.

Financial Reporting Discussion Points

Five key financial reporting items to discuss with both the actuary and the auditor are listed below.

  • Discounting
    Currently, guidance in the American Institute of Certified Public Accountants (AICPA) Audit and Accounting Guide Health Care Entities permits, but does not require, medical malpractice reserves to be recorded in the financial statements on a discounted basis. In order to discount a malpractice liability: 1) the amount of the liability must be fixed or reliably determinable; 2) the amount and timing of cash payments for the liability, based on the healthcare entity’s specific experience, must be fixed or reliably determinable; and 3) the expected insurance recoveries, if any, must also be discounted. If discounted reserves are presented, management must disclose the discount and be able to support the discount rate, which may include 1) the return on investments used to pay claims expected to be realized over the period the claims are expected to mature; 2) a risk-free rate; and 3) highly rated corporate bonds with maturities matching the average length of a malpractice payment, all of which may need to be periodically adjusted for future expectations.
  • Percentile
    Some healthcare entities record malpractice liabilities and fund for these losses with a contingency margin, such as at the 75th percentile, selected by management based on the nature and loss experience of the entity. ASC 954-450-25 provides that the liability recorded is independent of funding considerations. ASC 954-450-30 states that an entity should use all relevant information, including entity-specific data and industry experience, in estimating the liability.
  • Gross vs. net presentation
    FASB Accounting Standards Update (ASU) 2010-24, Healthcare Entities (Topic 954): Presentation of Insurance Claims and Related Insurance Recoveries, requires healthcare entities to report medical malpractice and similar liabilities on a gross basis, separately reporting any receivable relating to anticipated insurance recoveries. One of the outcomes of such gross presentation is to more clearly reflect the entity’s exposure to credit risk from the insurer, as the healthcare entity generally remains primarily liable for payment of claims until the insurer makes payments. ASU 2010-24 must be applied to all policies, including ground-up commercial policies, where the entity has a gross liability even though the net liability is $0.
  • Tail liability
    As addressed in ASC 720-20-25 and ASC 450-20-25, entities that maintain claims-made coverage must accrue for incurred but not reported claims and incidents as of the reporting date if the related loss is probable and reasonably estimable. Some believe the tail should be estimated based on an unlimited basis while others assume a limit based on the entities’ historical loss experience (also known as the “working layer”). Regardless of the limit assumed, the entity cannot assume that claims-made coverage will continue to be purchased in the future.
  • Conservatism in estimates
    Management should understand the amount of conservatism in the actuary’s estimate. Understanding the impact of large losses, where estimates fall within a range, and how actual loss experience is used compared to relying on industry information is important.

Working With The Actuary And Auditor

Management should set a goal to have frequent conversations and in-person meetings with both the actuary and the auditor. Although actuarial analysis and financial reporting can be complicated, it is critical for management to have a full understanding and the ability to effectively communicate its program and story. Finally, management should not be afraid to ask questions of both the actuary and auditor as this often leads to a better understanding for all parties and supports a collaborative working relationship between management, the actuary, and the auditor.

Authors

Richard Frese collaborated with Pat Kitchen in writing this article. Pat Kitchen is an assurance partner in the Chicago office of McGladrey LLP’s Great Lakes health care and not-for-profit practice. Pat leads McGladrey’s health care practice in Chicago and in its Great Lakes region. He has more than 24 years of experience serving a variety of health care organizations, including hospitals and health systems, specialty hospitals, academic medical centers and faculty practice plans, physician practices, and continuing care retirement communities. Pat assists clients with financial statement audits and reviews, compliance audits, accounting consultation, internal control reviews, acquisition-related due diligence, agreed-upon procedures and debt and equity financings.