Discussion Paper for the Productivity Commission around the Implementation of the Proposed National Injury Insurance Scheme (NIIS)

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1 Discussion Paper for the Productivity Commission around the Implementation of the Proposed National Injury Insurance Scheme (NIIS) This paper responds to the Productivity Commission Draft Report into Disability Care and Support. It is intended to contribute to the discussion around practical funding arrangements for the NIIS and appropriate criterion for determining coverage of medical accidents under the NIIS. The content has been developed by the Medical Indemnity Industry Association of Australia (MIIAA). It is the result of collaboration between Avant, MDA National and MIGA, jointly representing 80% of Australia's doctors, and consultation with the Australian Medical Association. It is important to note that this document only addresses the medical profession. Clearly the introduction of the proposed NIIS will also have implications for other healthcare groups including private hospitals, dentists and other allied health practitioners. A key issue for the Medical Indemnity Industry is that consideration is given to cover for all medical accidents under the National Disability Insurance Scheme (NDIS) rather than the NIIS which would ensure that those with a severe and profound disability, regardless of how it came about, receive the necessary support in line with the objectives of a no fault compensation scheme. Two models are provided for consideration and discussion which look at the possible financial impacts of the scheme. It is noted that two different approaches have been taken and where appropriate the assumptions are stated. We provide these working illustrations at this early stage in the development of the scheme and note that the figures are highly contingent on the final framework. Further modelling will need to take place once the finer detail of the scheme are known. Contents Page 1. Definition of a Medical Accident 2 2. MII Assessment of Potential Financial Impact of the Current Proposal 3 Using the Expected Costs from the Productivity Commission Report 4 Using Closed Claims Data 5 3. Recommendations around the Implementation of the Proposed Scheme 6

2 1. Definition of a Medical Accident The definition of a medical accident has significant implications for the funding of the proposed NIIS. The more open the definition, the more people are likely to enter the scheme with the subsequent consequences for financial support. As both the NDIS and the NIIS are intended to operate on a 'no fault' basis, the Medical Indemnity Industry considers that there should not be a criterion applied to 'medical accidents' to determine which scheme should provide coverage. Nor should there be any exclusion from coverage where there has been timely and appropriate treatment. However, if coverage of medical accidents is most likely to occur under the proposed NIIS, even as an interim measure, several options are presented in the following table to aid discussion. The differences between the definitions presented all have an impact on the number of people that may be covered by the scheme and therefore the funding required to manage medical accidents under the NIIS. Definition A person has suffered a catastrophic injury as a result of seeking or receiving treatment from, or at the direction of, a healthcare professional. A medical accident may be defined, for the purposes of assessing eligibility for support under the NIIS as a rare and serious outcome of medical treatment. Injury has been caused from expected known risks or unexpected and unusual outcomes of medical treatment. Additional Information/Rationale If some kind of injury should be a precursor to coverage and an eligibility criterion should be applied, we strongly suggest that it contain no fault element and no exclusions for treatment in a timely and appropriate manner (or similar). This means that people who suffer a disability as a result of the natural expected and inevitable progression of illness or disease would not be considered injured. They may be eligible to seek assistance from the NDIS. This recommendation is subject to acknowledgement that the range of catastrophic injuries will be significantly in excess of those that doctors are currently liable for and fund via their medical indemnity insurance premiums. This would have implications for funding of medical accidents within the NIIS and the contribution by government would need to be adequate to reflect the broad approach applied. In development of the definition/criterion, the Medical Indemnity Industry recommends that consideration also be given to: Potential adverse and unintended consequences including a possible increase in disciplinary matters if injured persons feel their rights have been partially reduced (as has been seen in other no fault schemes). Any such increase could potentially lead to increased costs being borne by the MIIs in dealing with those types of matters. Ensuring that outcomes that are disease based or a natural consequence of circumstances aren't classed as accidents solely in order to provide compensation? Collaboration between the NIIS and the Australian Medical Indemnity Industry to develop the necessary expertise on the management of medical negligence issues. Thursday 19 May 2011 Page 2

3 2. MII Assessment of Potential Financial Impact of the Current Proposal This section summarises some broad thinking on the funding of the NIIS as discussed by Avant, MIGA and MDA National. Two preliminary models are presented for the purposes of informing discussion around the funding issues. These models have been developed with reference to the information provided to date and acknowledgement that ultimately, the level of contribution from doctors / MII industry is dependent upon: What will fall into the NIIS. The types of matters / injuries that doctors may be expected to contribute to. The assessments presented in relation to potential financial impact use: 1. The expected costs from the Productivity Commission Report. 2. Closed claims data from one medical indemnity insurer, extrapolated to calculate an industry cost. Both look at the potential cost of the scheme in relation to medical accidents for doctors only. None of the numbers allow for: Costs from the public sector. Cost from the private sector not covered by insurers for doctors e.g. costs incurred by private hospitals. The outcomes of this analysis show different financial impacts: Cost neutral (assuming $685m proves to be the incremental cost of providing "no fault" cover under the NIIS). To a 12% increase in costs (if the High Cost Claims Scheme for doctors remains as it is). To a potential 25% increase in costs (if the High Cost Claims Scheme is fully removed). Process Going Forward As there are currently several ways of considering the funding of the NIIS, both in the interim and longer term, the Medical Indemnity Industry recommends: The data used for reference is brought up to date ASAP. Once the Productivity Commission has a clearer design for the Scheme/s, that an actuary be appointed to work with the Medical Indemnity Insurers to develop the modelling required. This will help better inform our discussions Representatives and insurers of other healthcare practitioners are brought into the discussion to consider the their contributions to the scheme. Thursday 19 May 2011 Page 3

4 METHOD 1 - Prepared by Avant and Using the Expected Costs from the Productivity Commission Report No fault funding for medical misadventure * Assumption 1: $685m is the incremental cost needed to fund the NIIS and of that amount $95m is attributable to medical misadventure. Assumption 2: Assumption 3: Assumption 4: Transfer of medical negligence funding The $95m might reasonably be expected to be shared as to: $65m by public health i.e. 70% $30m by private health i.e. 30%. Medical indemnity premium pool (including membership fees as well as medical indemnity premiums) is currently $300m. If the medical profession is expected to fully fund the no fault element of the NIIS resulting from medical misadventure then a 10% state based NIIS levy is required. Assumption 5: Assumption 6: Assumption 7: Assumption 8: Assumption 9: Assumption 10: Assumption 11: Assumption 12: Of the current medical indemnity pool of $300m say $180m is spent on paying claims of which: $160m is spent on civil claims; and $20m is spent on non civil claims. If future care costs are no longer to be claimable then once we achieve steady state, which we predict to be in or about 2025, then on a like for like basis civil claims costs should fall from say $160m to say $130m. It is implicit from Assumption 6 that taking money from the existing premium pool is not feasible hence the concept of the state based NIIS levy. If assumptions 5 and 6 are correct then a 10% state based NIIS levy (covering the no fault element of medical misadventure claims as above) should over time be matched by a like saving in medical negligence claims costs making the NIIS levy cost neutral. It is desirable that if the $95m is not needed in Year 1 that the state based NIIS levy be ramped up to 10% over a period of time starting at 5%. If assumptions 1 to 9 are correct then it is essential the HCCS and PSS be kept in place in their current state until at least the 2020 review. If assumption 6 is conservative then the Commonwealth will benefit from the lesser quantum and dollar value claims of above the $300,000 HCCS threshold. It would also make sense politically for the state based NIIS levy: to apply to membership fees paid as well as medical indemnity premiums; and to be included as a payment for the purposes of the PSS. *See Table 16.1 from Productivity Commission Draft Report Thursday 19 May 2011 Page 4

5 METHOD 2 - Prepared by MIGA and Using Closed Claims Data Potential total cost of the scheme in relation to medical accidents for doctors The cost of claims that are expected to be transferred to the NIIS from medical indemnity insurers. $30m The cost of no fault matters not previously covered assumed to be 100% of existing costs. $30m Potential savings in legal expense. ($3m) Potential total cost of the scheme in relation to medical accidents for doctors. $57m This means the extra cost to be funded would be: If the High Cost Claims Scheme is maintained in its current form 1. $27m If the High Cost Claims Scheme is removed in full 2. $54m Impact in terms of funding: If the costs of funding the medical accident component of the NIIS are fully transferred to doctors, the impact on them might be in the following order of magnitude. Basis Without allowing for the cost of no fault matters, and assuming no change to the HCCS, the projected cost to doctors is almost unchanged. Possible levy Nil. This reflects that the lower reinsurance premiums and savings in legal costs cover the increased cost of care under the NIIS. Including the cost of no fault matters. 12% If the HCCS were fully removed and including no fault matters. 25% The modelling shows that: In the short term, and until there is more certainty around costs; the funding for the NIIS cannot be from within the existing premium pool of medical indemnity insurers. The expected costs are in excess of current costs funded by medical indemnity insurers. This is mainly driven by: The additional cost that will be added through no fault matters being covered The fact that expected savings in legal expenses will not be at the level assumed The NIIS could only be funded by an additional loading on existing premiums, which might need to be 12% or more once the Scheme is mature. Notes: 1. This is the $30 million of extra cost from the inclusion of no fault matters less the $3 million saving in legal expenses. 2. The additional $27 million cost is an estimate of the value of the HCCS support that would remain after the NIIS. Thursday 19 May 2011 Page 5

6 3. Recommendations around the Implementation of the Proposed Scheme Move straight to coverage under the NDIS 1. All medical accidents are covered by the NDIS which ensures that those with a severe and profound disability receive the necessary support in line with the objectives of a no fault compensation scheme. If an NIIS is established 2. Any levy to fund the "no fault' element of a NIIS should not be an additional financial impost on the medical profession or the Medical Indemnity Industry. 3. State levies for funding a NIIS should be consistent across all states without the variations currently seen in areas such as stamp duty (to avoid incentivising jurisdiction shopping). 4. Due to the complexity around the funding and definition of medical accidents, if it is determined that medical accidents will fall under the NIIS, we recommend that a start date of 2015 is set for both schemes. 5. Funding via any State levy should be transitioned over a 5 year period during which existing subsidies and new levies cross over, allowing for minimal impact on the profession by gradual implementation. 6. In the case of medical accidents, the 2020 review of the NIIS/NDIS should be an interim review as there will not be sufficient time (assuming implementation in 2015) to observe the true impact of the schemes given the long tail class of cover provided by the MIIs. A further review should be undertaken in 2025 to truly determine the full impacts of the Schemes. Thursday 19 May 2011 Page 6

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