Less than zero: The effect on clinics of raising MICRA s $250,000 cap

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1 Less than zero: The effect on clinics of raising MICRA s $250,000 cap By Jay Angoff This white paper addresses the effect on Community Health Centers of increasing California s $250,000 limit on compensation for pain and suffering in medical malpractice cases. Having regulated medical malpractice rates and analyzed the causes of malpractice insurance rate increases as Missouri s Insurance Commissioner during the 1990 s, I have a particular interest in this issue. In addition, as the first Director of the HHS Office implementing the Affordable Care Act s insurance reforms, as Senior Advisor to Secretary Sebelius and as an HHS Regional Director, I had the pleasure of visiting health centers throughout the nation. I saw first-hand the high-quality care they provide, and witnessed how so many people--about 20 million nationwide--depend on health centers. Health centers enjoy immunity from medical malpractice liability because of federal law, thereby insulating them from any effects changes to malpractice law might cause. This fact explains the sustained, very high profitability of the medical malpractice insurance industry in California, and why that profitability will continue if the MICRA cap is increased. History Health centers are community-based and patient-directed organizations that provide primary health care to the medically underserved. They receive funding pursuant to the Health Center Program established by sec. 330 of the Public Health Service Act, 42 U.S.C. 254b, which is administered by the Health Resources and Services Administration ("HRSA") at HHS. They make their services available to all, and charge based on ability to pay. Because they provide primary care, and thus do not perform highrisk procedures, they are inherently low-risk entities. Nevertheless, in the late 1980's malpractice insurers substantially raised the rates they charged health centers. Accordingly, in 1991 the U.S. Office of Management and Budget directed the HHS Office of Inspector General ("OIG") to report on health centers malpractice premiums and claims experience. In November 1991 the OIG issued a report concluding that "centers have paid high premiums relative to both the low number of claims filed against them and the small size of successful claims paid. HHS OIG, Medical Malpractice Insurance and the Community Health Centers, Nov. 1991, at 3. The OIG explained that,

2 Data from those centers that have been studied indicate that successful medical malpractice claims against them represent roughly 10 percent of the costs of premiums paid. By contrast, medical malpractice claims paid on behalf of all providers nationally represent 56 percent of premiums paid. The OIG report recommended various options for reducing health centers' malpractice insurance costs. One such option was to treat health centers as federal employees for purposes of the Federal Tort Claims Act ("FTCA"). Under the FTCA, individuals injured by the negligent acts of federal employees may seek and receive compensation from the federal government. 28 U.S.C. 1346(b), Treating health centers as federal employees for purposes of the FTCA would thus require individuals injured at health centers to sue the federal government rather than the provider; claims would be paid by the U.S. Treasury. Health centers would thereby no longer be liable for medical malpractice, and would have no need to buy medical malpractice insurance. In 1992 Congress adopted the OIG's recommendation by enacting the Federally Supported Health Centers Assistance Act ("FSHCAA"). The FSHCAA established a demonstration program for three years under which health centers were treated as federal employees under the FTCA. In 1995 Congress amended the FSHCAA to make permanent FTCA coverage of both health centers and health center officers, directors, employees and contractors. 42 U.S.C. 233(g)(1)(A). It thus immunized both centers and their personnel from medical malpractice liability, and eliminated the need for them to buy medical malpractice insurance. In 1996, Congress enacted the Health Insurance Portability and Accountability Act ( HIPAA ). HIPAA amended the FTCA so that it covered not only health centers and center personnel but also volunteers at free clinics. HIPAA sec. 194, PHSA sec. 224, codified at 42 U.S.C. 233(o). Like health centers, free clinics provide free care to the indigent, but unlike health centers they do not bill third-party payers nor do they meet other statutory criteria necessary to qualify as health centers. In 2004, Congress appropriated funds to protect free clinic volunteers. Finally, in 2010, the Affordable Care Act expanded FTCA coverage regarding free clinics so that it applied to free clinic officers, directors, employees and contractors as well as volunteers. Affordable Care Act sec , amending PHSA sec. 224(o)(1), codified at 42 U.S.C. 233(o)(1). Entities and Individuals Covered by the FTCA Entities Four different types of health centers are designated as eligible to receive federal funding under PHSA sec. 330 and to be treated as federal employees for purposes of the FTCA. Those four are Community Health Centers, Migrant Health Centers, Health Care for the Homeless Centers, and Public Housing Primary Care Centers. 42 U.S.C. 254b(a)(1); see also HRSA, FTCA FAQs, at In addition, Indian Health Service Clinics are subject to the FTCA. Although unlike health centers designated by PHSA sec. 330 they need not make their services available to all individuals, employees of the Indian Health Service are employees of the federal government and thus immune from medical malpractice liability under the FTCA.

3 Individuals The FTCA provides protection to both full and part-time employees including clinicians, administrators, directors, nurses, and other personnel; officers and governing board members; all full-time contractors--those working at least 32.5 hours a week; and part-time contractors in the fields of family practice, obstetrics and gynecology, general internal medicine, and general pediatrics. See HRSA, Federal Tort Claim Act Medical Malpractice Program, Sept. 15, 2008, at 5, accessed at In addition, the FTCA covers not only services rendered at community health center sites but also services rendered on behalf of the health center at alternative settings, including those in connection with hospital on-call arrangements, cross coverage arrangements, community outreach and interventions, emergencies due to natural disasters, health fairs, and clinical training. Id. Finally, the FTCA covers not only volunteers at free clinics but also free clinic officers, governing board members, employees, and contractors. Advantages of FTCA Coverage over Private Malpractice Insurance Coverage FTCA coverage provides health centers and free clinics with several advantages that private medical malpractice insurers often do not provide. For example: 1. Coverage under the FTCA is occurrence coverage, not claims-made coverage. Occurrence coverage covers the insured for any claim that arises during the policy year, even if the claim is made several years after the policy year. Claims-made coverage, in contrast, covers the insured only if the claim is made during the policy year. Occurrence coverage is therefore far broader than claims-made coverage. Traditionally, medical malpractice coverage has been occurrence coverage, but malpractice insurers now sell predominantly claims-made coverage, and charge insureds extra for so-called tail coverage for claims filed in the future that arose during the policy year. FTCA coverage, in contrast, has been and remains occurrence coverage. Thus, even if FTCA coverage of health centers were to be discontinued or a health center were to lose its federal funding, a provider would retain permanent protection for acts that occurred while he or she was working at the health center. See HRSA, Clinician s Handbook on the Federal Tort Claims Act, at 12, accessed at ftp://ftp.hrsa.gov/bphc/pdf/quality/2002clinicianhandbook.pdf. 2. Coverage under the FTCA is unlimited. Private medical malpractice coverage has limits--e.g., $1 million per occurrence and $3 million for all occurrences during a given year. FTCA coverage, in contrast, is unlimited. There is therefore no need for individuals protected by the FTCA to purchase excess coverage to cover them for unusually high claims. 3. FTCA coverage pays for all costs associated with litigation. Traditionally, private insurers have covered the costs of litigation in addition to covering claims up to a specified limit, such as $1 million/$3 million. In recent years, however, some insurers have begun selling so-called defense within limits policies, in which the limit say $1 million/$3 million applies to the total of claims payments plus legal fees. FTCA coverage, in contrast, covers both unlimited claims payments and unlimited legal expenses. Implications for health centers and free clinics of FTCA protection and its history Before health centers and free clinics gained FTCA protection, such centers and clinics had conflicting interests. On the one hand, they had a professional interest in maximizing the well-being of those they serve, including allowing those injured at health centers through no fault of their own to be adequately compensated for their pain and suffering. On the other hand, they had an economic interest in minimizing the amount they would have to pay to injured people or to malpractice insurance companies.

4 Today, however, they no longer have that economic interest, since they no longer have any obligation either to pay injured individuals or to pay malpractice insurance premiums. Therefore, increasing the MICRA cap would have no effect on health centers and free clinics or their ability to serve the underserved. In addition, before health centers and free clinics gained FTCA protection, they reasonably could have believed that the 56% of the premium dollar malpractice insurers paid out in claims, according to the 1991 OIG report, would rise in the future--and perhaps even rise to a level at which malpractice insurers became unprofitable. Today, however, we know that the opposite is the case. Malpractice insurers were very profitable at a 56% loss ratio--at that level 44 cents of the premium dollar, plus all investment income, is available for profit and expenses--but in recent years in California they have become even more profitable. Specifically, in each of the last ten years California malpractice insurers had loss ratios of no more than47%, and in each of the last eight years of no more than 38%--thus leaving at least 62 cents of the premium dollar, plus investment income, for expenses and profit. California Department of Insurance, Historical ( )Premium and Loss Charts by Line, at 13 (April 30, 2013). The high profitability of medical malpractice insurance in California is not directly relevant to health centers and free clinics due to their coverage by the FTCA. Nevertheless, that California private malpractice insurers are now paying out so little in claims may give comfort to centers and clinics, as well as to other parties, that malpractice insurers would still be highly profitable if the $250,000 limit on compensation for pain and suffering were increased. The Implications of the Affordable Care Act Finally, concern has been expressed that, given the necessity of implementing the Affordable Care Act in 2014, now is not the time to change California malpractice law. I would argue the opposite: that the benefits contained in the ACA for health care providers make this exactly the right time to bring MICRA into the 21 st century. (As you know, while the cost of everything has gone up in the last 38 years, the MICRA cap of $250,000 was not indexed for inflation. So while such a cap may have appeared reasonable in 1975, it clearly is not reasonable 38 years later, during which the cost of living has increased by more than 300%.) Here are just a few of the ACA s benefits for health care providers: 1. Additional funding for health centers. The ACA contains an additional $11 billion in funding for health centers, which can enable health centers to increase the amount they pay to doctors and other health care providers. 2. A $1.5 billion increase in National Health Service Corps funding. The National Health Service Corps makes grants and loans and offers loan forgiveness of up to $120,000 to doctors and other healthcare providers who practice in underserved areas for at least three years. 3. Raising the Medicaid rate for primary care doctors to the Medicare rate. Because health centers and free clinics provide primary care exclusively, this is a particular benefit to them, as well as to the doctors who provide services there. Raising primary care Medicaid rates to Medicare rates will increase Medicaid compensation to primary care doctors in California by 136%. Notably, the federal government pays the full cost of the increase.

5 4. Grants for or for the benefit of doctors. Doctors are either themselves eligible to participate in or can directly benefit from billions of dollars in grant funding under the Affordable Care Act, including Innovation Center grants, Prevention Fund grants, and Community Transformation grants. 5. Increased funding for advanced practice nurses and other non-physician health care providers. One of the ways to relieve the burden on doctors and to enable more people to obtain health care is to enable advanced practice nurses and other non-physician health care providers to provide all care that their training qualifies them to provide. The ACA authorizes both more funding for non-physician health practitioners and more funding for educating them. About the author: Jay Angoff is a former Acting Regional Director at the United States Department of Health & Human Services. He has been involved with the insurance industry and its regulation for more than 20 years, during which he has advocated on behalf of insurance consumers in state and federal courts, before state and federal administrative agencies, in Congress, and before the legislatures of more than 40 states. From January 1999 to December 1999, Mr. Angoff served as Director of the U.S. Health Care Financing Administration's private health insurance group, where he oversaw federal enforcement of recently enacted legislation governing the portability of health insurance coverage. Prior to that, Mr. Angoff served as the insurance commissioner of the State of Missouri. From 1991 to 1993, Mr. Angoff served as special assistant for health insurance policy to the Governor of New Jersey. Prior to that, he was Deputy Commissioner of the New Jersey insurance department.

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