New proposals would impact patient coverage

Two new proposals, one federal and one state, could significantly impact patient coverage and access in Wisconsin. Last Thursday, the Centers for Medicare and Medicaid Services (CMS) released new guidance that would allow states to seek block grants for their Medicaid programs, and earlier this week a bill began circulating in the Legislature that would codify the federal government’s rules on short-term limited duration insurance (STLDI) plans.

New CMS Rule

Under the new CMS rule, states would be able to opt out of the current entitlement financing structure, which does not have a cap on federal funding, and instead receive a fixed payment from the federal government on either an aggregate or per capita basis.

The new block grants could allow states to expand their Medicaid programs under the Affordable Care Act (ACA) while also incorporating policies like:

• Adding work requirements
• Premiums for Medicaid enrollees
• Less federal oversight of private insurers who provide coverage to Medicaid recipients
• State authority regarding reimbursement rates

Critics of the new guidance point out that states would be able to cut benefits and impose new out-of-pocket costs which could result in people losing coverage they have under existing Medicaid rules. This new guidance is optional, not a requirement, and most states are unlikely to pursue the new funding mechanisms.

Proposed STLDI Bill

The proposed bill regarding STLDI plans would adopt the federal regulations on STLDI plans at the state level. Under the federal rule, STLDI plans were expanded by the Department of Health and Human Services in 2018 from 3 months to 12 months with an option to be renewed up to 36 months.

STLDI plans don’t have to comply with ACA requirements relating to:

• Guaranteed coverage for preexisting conditions
• Essential health benefits
• Underwriting

The federal STDLI rules were challenged in court, but in July of 2019 a judge upheld the final rule. That ruling is currently being appealed. The Society opposed these STLDI rules when they were initially proposed.

The Society will be actively monitoring these issues and if you have any questions, please contact HJ Waukau.

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Society accepting WISMedPAC board nominations

The Wisconsin Medical Society is currently accepting nominations to the WISMedPAC Board of Directors. WISMedPAC is the Society’s political action committee (PAC), and its Board is responsible for guiding the Society’s political contribution efforts.

The WISMedPAC Board usually meets quarterly and works to ensure that physicians are active participants in the political process. Primary responsibilities include directing PAC contributions to those candidates who are seeking election in key state races, serving in leadership roles or have shown serious interest in health care policy. The Board also authorizes contributions from WISMedPAC to various legislative fundraising committees.

During its next meeting, the Society’s Board of Directors will appoint between eight and 16 nominees to the WISMedPAC Board for one-year terms.

Nominations and questions should be emailed to Heidi Green by Wednesday, February 19 (Society members may nominate themselves).

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Nominees for Society offices announced; District caucuses scheduled

The Nominating Committee of the Wisconsin Medical Society House of Delegates (HOD) prepared a slate of nominees for Society offices during its meeting January 24. The nominees, including those for American Medical Association (AMA) Delegates and Alternate Delegates, are as follows:

• President-elect: Alicia Arnold, MD
• Vice Speaker of the House of Delegates 2021 and 2022: Tracy McCall, MD
• AMA Delegate (three positions) 2021 and 2022: Barbara Hummel, MD; Michael Miller, MD; Tosha Wetterneck, MD
• AMA Alternate 2021 and 2022: Donn Dexter, MD

 
Elections will occur Sunday, April 19 during the Society’s 2020 House of Delegates after the Committee reports the names of nominees. The nominees’ biographies, as well as their candidate questionnaires and conflict of interest forms are available here.*

The Nominating Committee selected the nominees after reviewing the candidates’ written submissions and interviewing them for the positions of president-elect, vice speaker, AMA delegate and alternate delegate.

In accordance with the Society’s bylaws, HOD members may make additional nominations from the floor of the House. Anyone interested in running for a Society office from the floor should plan to attend the HOD and take appropriate steps to secure a nomination and obtain member votes.

District Caucuses
Society members will have the opportunity to discuss resolutions that will be acted on by the HOD by participating in Virtual Reference Committees, live Reference Committees and the following District Caucus meetings.

• District 2: Sunday, March 22, 10 a.m. – Madison
• District 5: Wednesday, March 18, 6 p.m – Oshkosh
• District 6: Wednesday, March 11, 6 p.m. – Green Bay
• District 7: Tuesday, March 10, 6:30 p.m. – Eau Claire
• All other Districts' meetings are to be determined

 
Click here for details and to RSVP for your caucus meeting.

Virtual reference committees will open online February 20 and live Reference Committee hearings will be held Saturday, March 28 at the Clarion Suites, 2110 Rimrock Road, Madison. Members will also be able to participate remotely via GoTo Webinar. Watch for upcoming Medigram articles for more information about these options.

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Share governance modernization feedback

Feedback is the name of the game, as Wisconsin Medical Society staff and member leadership crisscross the state to hear from our members. Earlier this month, two Society Districts (3 and 7) already held their listening sessions, with great attendance and substantive dialogue. Register for your district meeting here.

Over the last two weeks, delegates from the past two House of Delegate meetings provided feedback on the proposed governance changes via an online survey. Although we are still reviewing the results, we can share that more than 80% of respondents are favorable to adopting a digital policymaking process. 

Staff will continue to share information about the proposed policymaking process and to hear from as many of our members as possible. So, please attend your district meeting, leave your thoughts and questions via this form or reach out to Peter Welch.

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Playing defense and offense to win the liability game: a game plan for success in a hard insurance market

“Physicians in Wisconsin will soon be paying more for medical professional liability (MPL) insurance thanks to a cyclical “hardening” of the market.” (Excerpt from Part 1)

Part 3 of 3

Three of every four primary care physicians will be sued by a patient during the course of their career. The numbers are even worse for specialties.

Which is why physicians as a whole are not willing to take the chance that they will be among the lucky few who never get sued. To guard against the financial impact of a lawsuit, they purchase Medical Professional Liability (MPL) insurance. But, as Wisconsin physicians begin to experience rising MPL premiums along with greater underwriting scrutiny, the question becomes, “How can I get the coverage I need and avoid paying too much?”

The answer is to play defense and offense at the same time: defense by reducing the chances of being sued and offense by managing your insurance purchase.

It’s simple: don’t get sued

Well, if only it was that simple. In reality, a physician can do everything perfectly for a patient and still be sued because of a poor outcome.

Legally speaking, to be successful in court, a patient’s legal team has to prove three things:

1. The physician committed a breach of duty by not providing medical care another healthcare professional would have provided
2. The patient suffered emotional or physical injury
3. The physician caused the damage to the patient

But, even when one or more of these three are not provable in court, no physician wants to end up in court in the first place… nor does their MPL insurer want to pay the legal bills.

How’s your Patient CRED?

Playing defense could be as conceptually simple as applying the “CRED” concept to your medical practice:

C – communication

R – relationship

E – education

D – documentation

Communication
A breakdown in patient-provider communication is a leading contributor to malpractice lawsuits. While it is absolutely essential to obtain adequate informed consent, doing so as part of an open, two-way conversation with the patient and their family when appropriate goes a long way in helping you avoid your day in court.

By taking the time answer questions, address concerns and openly discuss potential complications, you can avoid false assumptions and miscommunication while building patient confidence.

Relationship
Patients and families are much less likely to sue a physician when they feel they have a good relationship. Even if you deliver the best possible care, without a good relationship, its perceived value and effectiveness can be significantly diminished in the eyes of your patient.

That’s why approaching each patient with compassion and empathizing with their concerns and condition throughout the cycle of care is one of your best defensive strategies. Most of the time all it takes is for you to stop for a few seconds and truly engage with patients. Making eye contact, actively listening and just being there for a moment instead of worrying about where you have to be next can make all the difference.

Education
When a patient or a member of their family doesn’t understand the diagnosis, treatment or regulations, it is far too easy for them to feel you’ve done something wrong or inadequate.

If you don’t educate them, they instead rely on assumptions, what they read on the Internet and what their cousin in Oconomowoc heard on the Doctor Oz Show.

To protect yourself–to play strong defense–take time to educate your patients and their family so they understand why you are recommending all tests and treatments ahead. Plus, they need to know what to expect including risks and possible side effects, recovery times and results.

Clearly explaining why and what helps you avoid having to justify your actions and decisions by making the patient and their family part of the decision-making process.

Documentation
Malpractice lawsuits occur when a patient thinks they’ve been harmed and are supported by others in making a case against a physician. Defense then is conceptually simple; you must accurately document the patient’s condition and why your diagnosis and treatment decisions were made.

But, in practice, it’s a lot more complicated. One complicating factor you cannot afford to overlook are the decision-making (or at least decision-influencing) conversations you have with patients and their families. When you use the other three elements of Patient CRED, these conversations gain importance and the need to document them is essential.

Going on the offensive

Inevitably, you will pay more for MPL insurance. But, to avoid an even worse-case scenario where you can no longer find adequate coverage at all, there are several things you can do.

As the market hardens, underwriters will begin to clamp down on exceptions. This means that if your risk management practices and policies are irregular, you will pay a lot more and your options could be severally limited.

Unfortunately, to protect their profits, some insurers may reduce claims and risk management personnel and services. And some may sell directly and not through licensed insurance agents who can help you play offense, which makes it even more important for physicians to make sure they have their act together when it comes to risk prevention.

Here is a risk management checklist you can use to improve your offense and be seen as a preferred risk to an insurance company:

• I understand and have taken advantage of the premium discounts and credits my insurance company offers.  Yes    No    Not Sure
• I regularly participate in risk-reduction CME courses and seminars and receive discounts from my insurance company for doing so.  Yes    No    Not Sure
• I utilize electronic medical records in my practice and receive discounts from my insurance company for doing so.  Yes   No   Not Sure
• My organization pursues ongoing risk-management efforts such as claims management, quality initiatives and risk assessments. Yes    No     Not Sure
• My organization has an effective peer-review process.  Yes     No     Not Sure
• My organization has practical guidelines for medical record documentation and consent forms.  Yes   No    Not Sure
• I (we) have chosen the location for our organization by balancing market/patient accessibility and location-specific insurance costs.   Yes    No    Not Sure
• When completing annual insurance renewal forms, I am careful to answer all questions as accurately as possible and include any and all substantive changes to my practice (e.g.: changes to hospital staff privileges, joining a managed-care network, gaining specialty board certification).   Yes   No   Not Sure
• I understand the difference between claims-made and occurrence coverage and have chosen the coverage most appropriate for my situation:   Yes   No   Not Sure

It takes two to Tango

Playing offense goes beyond implementing risk management strategies. It also means playing tough with your insurance company. Given that the likelihood of a law suit occurring is so high, you need to be aware of your insurance company’s track record when it comes to managing claims.

Here are some important questions to ask:

• How many lawsuits do they defend annually?
• What is the percentage of cost they spend on defense vs. settlement?
• How does their success rate in court compare to the national average?

Nationally, only about five percent of cases go to trial. And, of those, about 80 percent are decided in favor of the physician.

What should you do now?

For now, assuming your house is in order, you will want to look for stability and security by renewing your coverage with a financially strong insurer; a long-term player committed to the MPL insurance marketplace. This is where an experienced broker can play a key role in helping you understand the quality of the insurers willing to do business with you.

As the market continues to harden, it is essential to seek the help and advice of an experienced, committed advisor who can help you improve your underwriting profile if need-be and navigate your options.

If you would like to discuss this article or your insurance needs and concerns, please feel free to contact me.

Shawna Bertalot, CIC, ACI, President WisMed Assure
[email protected]
608.442.3810

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