Public Risk July/August 2022 by Moire Marketing Partners

PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION JULY/AUGUST 2022

PUBLIC RISK MANAGER OF THE YEAR MEET ALLIE MATTHEWS PAGE 6

ALSO IN THIS ISSUE

PROTECTING SCHOOL STUDENTS, STAFF AND INSURANCE BUDGETS AGAINST TODAY’S LEADING RISKS PAGE 12

UNDERSTANDING WHAT MEDICAL BILLS THE JURY SEES: A PRIMER ON FLORIDA LAW FOR RISK MANAGERS PAGE 16

FREE TO MEMBERS

Risk Management’s Role in Addressing the Insider Threat Security Risk JULY 27 | 12:00 PM – 1:00 PM EST SPEAKER: Robert Emery, DrPH, Vice President for Safety/Professor of Occupational Health, University of Texas Health Science Center at Houston While organizations maintain many layers of controls to prevent outsiders from gaining unauthorized access to cause loss or harm, persons who have been granted legitimate access can become an “insider threat” and, because they are very difficult to detect, cause more than $100 billion in losses annually. This presentation will provide attendees with the weapons to tackle security hazards set in motion by those behind the curtain. ATTENDEE TAKEAWAYS: 1. Identify insider threat risks 2. Recognize risk factors 3. Enable some interventions to address the vulnerability

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

JULY/AUGUST 2022 | Volume 38, No. 4 | www.primacentral.org

CONTENTS

PRESIDENT Scott J. Kramer, MBA, ARM County Administrator Autauga County Commission Prattville, AL PAST PRESIDENT Melissa R. Steger, MPA, CRM Asst. Dir., WCI & Unemployment Ins. University of Texas System Austin, TX PRESIDENT-ELECT Laurie T. Olson Sr. Risk Management Consultant City/County Insurance Services Salem, OR DIRECTORS Sean Barham, MBA, ARM Executive Director of Human Resources Las Cruces Public Schools Las Cruces, NM Dana S. Henderson, CWCP Risk Manager Town of Mount Pleasant Mount Pleasant, SC

Public Risk Manager of the Year By Jennifer Ackerman, CAE

Jennifer Hood Safety & Risk Director Montgomery County Government Clarksville, TN Steve M. LePock, II Risk Manager Virginia Beach City Public Schools Virginia Beach, VA Adam F. Maxwell, CLRP Director, Administrative Services City of Westerville Westerville, OH Ann-Marie A. Sharpe, ARM, RMPE Director, Risk Management City of Miami Miami, FL NON-VOTING DIRECTOR Jennifer Ackerman, CAE Chief Executive Officer Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE 703-253-1267 jackerman@primacentral.org ADVERTISING Jennifer Ackerman, CAE 703-253-1267 jackerman@primacentral.org

Protecting School Students, Staff and Insurance Budgets Against Today’s Leading Risks By Doug Manwaring and Mike Glover

IN EVERY ISSUE

Understanding what Medical Bills the Jury Sees: A Primer on Florida Law for Risk Managers By Jennifer Smith Thomas

| 4 NEWS BRIEFS | 20 ADVERTISER INDEX

Public Risk is published 6 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year. Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine. POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314. Copyright 2022 Public Risk Management Association

JULY/AUGUST 2022 | PUBLIC RISK

BIG IDEAS. SMALL SETTING.

PRIMA INSTITUTE 2022 The Industry’s Premier Risk Management Educational Program

October 17–21 // Old Town Alexandria, VA PRIMA Institute 2022 (PI22) is an innovative educational symposium comprised of fundamental risk management curriculum, outstanding faculty, and excellent networking opportunities. PI22 is aimed at new and seasoned risk management professionals who want to learn more about emerging trends and best practices.

MESSAGE FROM PRIMA PRESIDENT SCOTT J. KRAMER, MBA, ARM

et me begin by saying how enjoyable it was to get back together with our peers, our friends in San Antonio at PRIMA’s 2022 Annual Conference! I feel like most of us have struggled in getting past the pandemic, but it truly felt great to see you guys, or y’all for my southern friends. Having lived in the south all of my life, I wasn’t really affected by a little heat and humidity. I especially enjoyed our Tuesday night event which brought us together in a casual setting. After such a successful conference, I want to give a big shout out to our sponsors and corporate partners. Without them, our annual conference would not be such a huge success. I also could not be more thrilled to return to the role of PRIMA president. Having the opportunity to serve the PRIMA membership again is a privilege. In San Antonio, we gathered to recognize our industry’s shining stars at our awards luncheon. Specifically, I was proud to recognize the achievement awards, chapter recognition and especially, the Public Risk Manager of the Year, Allie Matthews from the city of Tucson, AZ. It is obvious that Allie has truly made an impact with her established relationships in Tucson. You can read more about Allie’s accomplishments in this issue. Looking toward this upcoming year, I truly want all of us to be intentional about getting reconnected, to share our stories together. Over the next couple of months, reach out to one or two of your peers that attended the conference,

“

As we look forward to this upcoming

year, I truly want all of us to be intentional about getting reconnected, to share our stories together. Over the next couple of months, reach out to one or two of your peers that attended the conference, to

“

Great To Be Back Together!

check on them and offer any assistance to their current challenges.

to check on them and offer any assistance to their current challenges. Most likely, we will have some similar concerns that we can help each other with, whether, for example, that is prioritizing the use of the American Rescue Funds or working with employees that have transitioned to a modified home/ work schedule. Networking is one of those gems in our PRIMA membership that we can continually take advantage of. As we look forward to the near future in sharpening our saw, don’t miss the opportunity to take advantage of PRIMA Institute being held in Old Town Alexandria, VA from

October 17–21. Thank you again for taking the time to attend the PRIMA Annual Conference in San Antonio. I hope it was as rewarding for you as it was for me. Sincerely,

Scott J. Kramer, MBA, ARM PRIMA President 2022–2023 County Administrator Autauga County Commission Prattville, AL

JULY/AUGUST 2022 | PUBLIC RISK

NEWS BRIEFS

NEWS Briefs

VACCINATION POLARIZATION: EMPLOYEES WANT MANDATES, BUT EMPLOYERS MUST CONSIDER WORKERS’ COMP AND EPLI RISKS The choice over whether or not to get vaccinated has been in the spotlight since the first COVID-19 vaccines were distributed in the U.S. in December of 2020. An April survey from the resume and career coaching site, My Perfect Resume, examines employee attitudes toward vaccination policies in the workplace. Here are some takeaways reported in Risk and Insurance. First, a bit about the demographics of the survey. My Perfect Resume reports that 83% of the more than 900 respondents said they received the COVID-19 vaccine and 90% said it was their personal choice to get vaccinated. Though many said vaccination was a personal choice, 82% of survey-takers reported that their employers encouraged them to get vaccinated and 72% said their companies had a mandatory vaccination policy. Seventy-eight percent of respondents believe that COVID-19 vaccines should be mandatory. Only one out of every five respondents opposed mandates. Vaccinated respondents took their support of mandates a step further, with 61% saying they would refuse to work with an unvaccinated colleague if they could.

The Workers’ Comp and EPLI Risks to Watch For The results of the survey are overwhelmingly clear: Workers want their employers to take action to protect them from COVID-19 infection, including through mandatory vaccination.

PUBLIC RISK | JULY/AUGUST 2022

It’s a move with many benefits for businesses. A vaccinated workforce is safer from the virus since it prevents serious illness and death, thereby reducing workers’ comp exposures, particularly in states with COVID-19 presumptions. Mandatory vaccination policies may also help employers attract workers during the talent wars spurred by the Great Resignation: 74% of respondents preferred to work for an employer with vaccine requirements in place, per the My Perfect Resume survey.

Employers are well within their rights to mandate vaccination. The Supreme Court may have blocked an emergency temporary standard from OSHA that would have required vaccine mandates and testing requirements for employers with 100 or more workers, but it has upheld the right of individual, private employers to require inoculation. Any mandates will need to carve out medical and religious exemptions in order to reduce their liability exposures regarding claims of discrimination.

The results of the survey are overwhelmingly clear: Workers want their employers to take action to protect them from COVID-19 infection, including through mandatory vaccination.

LOUISIANA LIMITS MUG SHOT PUBLISHING BEFORE CONVICTION

REPORT HIGHLIGHTS TRENDS THAT COULD IMPACT COMP INDUSTRY

Louisiana has joined several other states in limiting when mug shots can be made public.

A new report by the National Council on Compensation Insurance found that three state trends could impact the industry moving forward: independent contractors/ gig economy, single-payer health insurance and the legalization of marijuana.

Democratic Gov. John Bel Edwards announced he signed a law that bars law enforcement agencies from releasing most booking photos before a person is convicted of a crime. “Millions are arrested every year, only to later have their charges dropped or cases dismissed, or be found not guilty,” said state Democratic Rep. Royce Duplessis, in an op-ed in The Advocate explaining why he introduced the bill. “Yet their booking photos, published online or in print, follow them around for years, like a modern-day scarlet letter of criminality.” Post-arrest photos can perpetuate racial stereotypes. That was part of the motivation behind a similar bill that was enacted last year in Oregon, according to its sponsor state Rep. Janelle Bynum, a Democrat. The practice of media publicizing booking photos “tends to harm communities of color more than anybody else,” Bynum said in an interview with Stateline. The original Louisiana measure would have stopped law enforcement from releasing photos prior to conviction with only narrow exceptions for someone deemed a fugitive or a danger to the public. The Senate amended the bill to add exceptions for people accused of certain crimes, including sex offenses, human trafficking or cruelty to animals. Critics of the legislation assert that all mug shots should be accessible under public record laws. The Louisiana Press Association opposed the bill, according to the Louisiana Illuminator. But several news organizations throughout the United States have decided not to publish mug shots prior to convictions. The law, which passed with bipartisan support, also puts certain restrictions on commercial websites that publish booking photos and typically charge fees for them to be removed. For example, if an individual who has been acquitted of a crime in Louisiana asks a website to remove their photo, the website must do so within seven days without charging a fee. In recent years, legislators in many states have debated measures that would crack down on those commercial websites. Over the past year, lawmakers in some states have gone further by barring the release of the photos not just to those sites but also to the public generally, including to law enforcement social media accounts and news outlets. At least six states—Arkansas, California, Florida, Montana, Oregon and Utah—enacted restrictions on distributing mug shots last year, and close to a dozen states considered similar legislation, according to the National Conference of State Legislatures.

Legislative proposals that would establish criteria for determining whether a worker is classified as an employee of a company, eligible for workers comp, or as an independent contractor continue to be considered. A California law establishing a test for determining worker status has spurred two states to consider similar measures this year: Rhode Island and Vermont. Gig workers, including transportation network company drivers who work for Uber and Lyft, as well as other marketplace contractors, were the focus of legislation in several states during the 2022 legislative session, including Alabama, South Dakota, and Washington. The Supreme Judicial Court of Massachusetts is expected to rule on the matter this summer. A single-payer health system has been discussed at both federal and state levels for years. To date, no state has fully adopted such an approach; however, several jurisdictions are studying the issue. NCCI said that of particular interest are bills in California, Kansas, New York and Rhode Island that include references to workers compensation. And while marijuana is still illegal at the federal level, states continue to legalize it through legislation and ballot measures. In 2022, five states addressed legalization with mixed results: Rhode Island passed a bill, Maryland is set to ask voters in the next election, and proposals in Delaware, Missouri and New Hampshire did not advance. Mississippi enacted a bill to legalize the medical use of marijuana, while medical marijuana legislation failed to advance in Kansas, Kentucky, Nebraska and North Carolina. States continue to grapple with the issue of medical marijuana reimbursement in workers comp: Mississippi, Rhode Island, and South Dakota enacted legislation requiring it, and other states, including Kentucky, Maine and Nebraska, introduced legislation saying comp insurers are not required to reimburse for medical marijuana. New Jersey and New York are considering legislation that requires comp coverage for medical marijuana under certain circumstances.

JULY/AUGUST 2022 | PUBLIC RISK

PUBLIC RISK | JULY/AUGUST 2022

TUCSON RISK MANAGER TARGETS ZERO Meet Allie Matthews, PRIMA’s 2022 Public Risk Manager of the Year BY JENNIFER ACKERMAN

LLIE MATTHEWS BECAME THE RISK MANAGER of the city of Tucson in 2013. At the time, risk management was comprised primarily of liability claims, insurance and contract reviews. Within a short time, Matthews

recognized a gap within the risk management realm. “I am a native Tucsonan,” said Matthews. “Tucson is my life”

problems, are why she was chosen as PRIMA’s 2022 Public Risk Manager of the Year.

Matthews quickly requested an external audit of the city’s risk management program. The audit showed the city needed improvements. Matthews instituted several measures for the proper valuation of claims, including requesting additional staff for the department. Matthews also established the self-insurance trust board, organized the valuation data for the city’s more than 700 municipal properties and more than 2,000 housing units.

“I’ve worked with and for a number of risk managers around Arizona, said Maria Robinson, director of risk management, city of Flagstaff, Ariz. “When the announcement came up that PRIMA was taking submissions for this award, my mind immediately went to Allie. It’s not just a job for her.”

Matthews’ dedication to the profession, as well as her innovative strategies to solve complex

“Allie has led the charge with how we approach risk management,” said Michael Ortega, Tucson city manager. “It’s no longer risk management as one subset or section, but it’s ingrained in our organization.”

JULY/AUGUST 2022 | PUBLIC RISK

PUBLIC RISK MANAGER OF THE YEAR

In a time when the landscape on how to do business changed almost overnight and when employees were required to retreat to remote work, safety didn’t stop, not even for a minute. TARGET ZERO

In 2020, Matthews spearheaded a new program in the city aimed at reducing the frequency of incidents resulting in claims: Target Zero. The program created a consistent and cohesive city-wide safety and health management program. As part of the Target Zero, two of the city’s largest departments (water and parks and recreation) signed a Public Entity Participation Program (PEEP) agreement with Arizona’s Department of Occupational Safety and Health (ADOSH). This launch along with the signing of a PEPP agreement with ADOSH is particularly notable as this occurred during the COVID pandemic. In a time when the landscape on how to do business changed almost overnight and when employees were required to retreat to remote work, safety didn’t stop, not even for a minute. Target Zero is a collaborative safety and health program based on OSHA best practices with the goal of protecting employees by fostering a proactive approach to finding and fixing workplace hazards before they can cause injury or illness and have preventive vehicle practices to reduce incidents. It includes 63 elements spanning seven components with a focus on employee engagement in workplace safety and health. There exist no acceptable number of injuries, illnesses, or incidents in the workplace — the goal is zero. “This program was championed by Allie,” said Vince Tracey, safety and health/loss control manager for the City of Tucson. “By having all the safety people housed at the same location, it helped us refine the type of program we want to run throughout the whole city.”

PUBLIC RISK | JULY/AUGUST 2022

“It’s about a behavior change,” said Matthews. “You get people looking out for each other. It also adds money back into our system because we are not paying for people to be out with injuries.” Without this goal in mind, achieving zero is not possible. Anything is possible with a Target Zero frame of mind. Target Zero consists of the following: • Management Leadership (6 Components in Section 1, 3 Groups to work on these components) • Hazard Identification and Assessment • Hazard Prevention and Control • Education and Training • Program Evaluation and Improvement • Communication and Coordination for Host Employers, Contractors, and Staffing Agencies

• Employee Involvement • Planning & Implementation Team – plan sessions; facilitate meetings, forums, and discussions; and document results. Conduct outreach throughout a department. • Management/Leadership – actively participate in discussions and forums to describe, define, and list items to address elements in each component, as appropriate. Lead by example. Express a positive attitude and influence on all employees regarding Target Zero and its implementation. • Non-Supervisory Employees – will actively participate in discussions and forums, volunteer for a Target Zero working teams, and help find solutions to challenges. So far, Target Zero has shown a total recordable incident rate (TRIR) reduction from 7.0 in 2019 to 5.4 in 2021. The program also yielded a reduction in “days away, restricted or transferred” (DART) of 23 percent.

RISK MANAGEMENT SUPPORT SYSTEMS

Authoring the requisite white paper, Matthews spearheaded the procurement and implementation of a risk management information system (RMIS) in 2018. The initial data migration

was comprised of the City’s liability antiquated claims system which was very limited. Through her foresight, she researched and found a vendor that would be versatile and would be able to expand into other areas in Risk Management. Shortly thereafter, The Office of Equal Opportunity Programs (OEOP) division began using the same RMIS to handle reported incidents. By 2019, the City’s driving program data was transitioned. By 2020, the system was ready to include Workers Compensation incident data. The use of the liability, driving and worker’s compensation modules in the RMIS, has greatly increased productivity, communication, and provided more accurate data to staff and departments. Also, the use of Workers’ Compensation Incident Module was particularly helpful as the city was poised perfectly to monitor COVID activity amongst its employee population when the pandemic occurred. Recognizing the challenges of disparate systems in several departments that had no way to communicate with each other, along with the manual hours dedicated to compiling and analyzing statistical data for trend analysis and

the necessary detailed reporting, was key in meeting the organizations mission, vision, and goals. Matthews also recognized that a RMIS was critical for the success of the department to streamline operations, make informed decisions, mitigate risk, and identify new opportunities not only for Risk Management, but also for individual departments within the organization. Matthews began initiating Departmental Collaboration Meetings with several departments within the organization to increase their awareness of potential risk and claims cost directly and indirectly from an analytical perspective as well as the opportunities presented with this awareness. “We now take a 360 degree view of what risk management means,” said Mike Rankin, Tucson city attorney. “It’s addressing risk as every level.”

MENTORSHIP

Not only does Matthews mentor within the community and serve on several boards, but Matthews’ personal and professional philosophy has been to grow, develop, mentor and coach all staff and from all levels to

become their best selves. She implemented a rotational shadowing program for each of her supervisor level and above employees on a quarterly basis and has been instrumental in the ongoing development of those skills. The rotation included not only staff within the liability group, but the Workers’ Compensation group and for the current safety and health loss control manager. This mentorship opportunity has given staff the skillset and confidence to serve as her back up when necessary. Matthews played a critical role in mentoring the previous safety and health loss control manager who accepted an administrator position (division manager equivalent) within the organization and recently went on to become the risk management director for another municipality in Arizona. “I’m only surprised that it’s taken this long for Allie Matthews to be the Public Risk Manager of the Year,” said Lane Mandle, chief of staff for the Tucson city manager’s office. “We are a safer more wonderful community because of Allie’s leadership.” Congratulations Allie!

JULY/AUGUST 2022 | PUBLIC RISK

FREE TO MEMBERS

Confessions of a Traveling Zombie: Four Tools to Navigate to Great Human Performance AUGUST 31 | 12:00 PM – 1:00 PM EST SPEAKER: Tim Page-Bottorff, CSP, CIT, Senior Consultant, SafeStart Have you ever stopped and watched what goes on around you in your surroundings? Whether it occurs in your neighborhood, at the airport or at a local sporting event, it’s bound to happen soon. People walking around like zombies. Everywhere! People wandering around aimlessly. People walking around and staring at their phones while they move with zero purpose. Zombies. The speaker for this session will share lessons from his adventures of taking more than 60-70 trips a year, which includes some of his mistakes and some of his observations. Some of what will be shared could have ultimately been fatal if the circumstances were right. Finally, the speaker will provide four tools to increase human performance and try to get rid of the zombie-like mindset much of us have adopted. ATTENDEE TAKEAWAYS: 1. Understand that no one really is a zombie, but we all make zombie-like moves 2. Gain insight into why sharing mistakes is more important than hearing them 3. Become equipped with four tools to navigate poor human performance

PRIMA INSTITUTE 2022 BIG IDEAS. SMALL SETTING.

October 17–21 // Old Town Alexandra, VA

SPONSORSHIP OPPORTUNITIES WHY SPONSOR PRIMA INSTITUTE? • Signal your organization’s commitment to continuing public sector risk management education • Promote your organization to an intimate group of influential risk managers • Support young risk managers who are new to the public sector • Introduce and keep your products and services in front of tomorrow’s decision makers via networking events and throughout the educational program • Establish and build loyal relationships with risk managers • Increase your organization’s brand recognition Contributing to PRIMA Institute (PI) is a great way to expose your company to PRIMA members as well as show your support of the public risk management profession! As a PRIMA Institute sponsor, your company will receive formal recognition of your commitment to the future of public risk management via:

• Acknowledgement in the PI22 program, marketing materials and certain issues of Public Risk magazine, and on the PRIMA Website. • Recognition on signage at PRIMA Institute 2022 • Recognition for sponsoring attendee scholarships (quantity and events determined by sponsorship purchased and sponsorship level). ABOUT PRIMA INSTITUTE PRIMA Institute (PI) is the premier educational program for new and seasoned public risk management professionals who seek to learn more about emerging trends and best practices. This hands-on learning environment affords attendees the opportunity to participate in case studies and network with leaders in the field of public risk management.

2 complimentary registrations will be given when a gold or platinum sponsorship is purchased. PLATINUM $10,000+

GOLD $9,999–$7,000

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Signage Recognition at PI and PRIMA’s Annual Conference

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*Scholarship recipients will receive complimentary registration.

For additional information regarding sponsoring PRIMA Institute, please contact PRIMA ’s education and training director, Shaunda Ragland, at sragland@primacentral.org.

PROTECTING SCHOOL STUDENTS, STAFF AND INSURANCE BUDGETS AGAINST

TODAY’S LEADING RISKS

BY DOUG MANWARING AND MIKE GLOVER

N AN ERA OF RISING SCHOOL VIOLENCE, risk managers would do well to partner with their insurance brokers and providers to understand the top risks they face, and how to best mitigate and manage those exposures.

PUBLIC RISK | JULY/AUGUST 2022

Such an approach protects students and staff while positioning school systems in the face of rising premiums and intense risk selection.

A HARD COURSE

From school shootings and violence against teachers to failure to educate and sexual misconduct, schools face some of society’s most horrific challenges. In fact, 2022 is on the unfortunate track to be a record year for school shootings, with 27 tragic events through mid-May, before the devastating events at Uvalde, TX on May 24, compared to the previous high of 34 for all of 2021, which was a three-fold increase from 2020, according to Education Week. At the same time, violence against teachers remains a clear danger. One-third of pre-K to 12th grade staff members experienced verbal harassment or threats of violence, and 14 percent were physically attacked, according to a recent survey conducted by the American Psychological Association. These and other challenges have hardened the insurance market for schools overall and dramatically impacted certain coverage lines, such as Sexual Misconduct Liability.

almost all forms of violence: follow procedure. Failure to adhere to established policies is a tragic thread weaving through many events of school violence. Someone used their discretion. Individuals didn’t look inside a backpack, left a door unlocked or failed to report what they saw with horrific consequence. Other best practices for mitigating the top risks faced by school include: • Partner with appropriate experts • Follow established and recognized guidelines • Set clear policies and hold people accountable • Transparently enforce them • Frequently communicate with teachers, students, parents and the broader community to engage them in developing solutions and inform them of specific policies

Failure to adhere to established policies is a tragic thread weaving through many events of school violence. Someone used their discretion. Individuals didn’t look inside a backpack, left a door unlocked or failed to report what they saw with horrific consequence.

Here are some best practices for mitigating four of the top risk challenges facing schools: violence, failure to educate, rising student mental health issues, and sexual misconduct. In developing specific plans to address each of these, school risk managers should work closely with their legal advisors, local law enforcement, unions, the broader community and insurance brokers and providers.

THE RUBRIC

School violence tops the list. It takes many forms, from active shooters to bullying and other possibilities in between.

Before going any further, however, it’s important to quickly highlight the single best way to try to keep students and staff safe from

Effective mitigation tactics include: • Prepare for the worst – Identify what can be done to prevent school violence, from in-school resource officers and metal

All is not lost, however.

JULY/AUGUST 2022 | PUBLIC RISK

PROTECTING SCHOOL STUDENTS, STAFF AND INSURANCE BUDGETS AGAINST TODAY’S LEADING RISKS

Most violence done by students, whether

an armed assault or bullying, may involve an

individual already concerning staff or known to law enforcement.

•

detectors to safe rooms and having all visitors enter through a single accesscontrolled door. Transforming a school from a soft target to a hard one could discourage assaults. Engage students and parents – Frequent communication about school violence and the policies addressing it is essential. Beyond highlighting a system’s rules and consequences, such communication should engage the broader community in developing and continually refining solutions. Partner with law enforcement – Schools are not alone in tackling the rise of violence in society. Systems can work with federal, state and local resources and elected officials to develop programs that actively identify potential threats and respond to them. Develop monitoring programs – There are often warning signs of a troubled student. Most violence done by students, whether an armed assault or bullying, may involve an individual already concerning staff or known to law enforcement. Clear procedures are needed to identify such students, inform the administration, address those concerns with the student and their parents, get that individual any necessary resources (including mental health) and continue to monitor his or her behavior, as appropriate. A parallel process should quickly identify specific threats of violence by students and others, and immediately engage law enforcement and other resources. Build response programs – School systems should work with local, state and federal resources to create specific plans for responding to all school violence, including bullying, teacher assault and active shooters. These plans should be practiced at regular points during the school year. Ensure everyone is aware of policies and procedures, and that no one has the discretion to deviate.

PUBLIC RISK | JULY/AUGUST 2022

• Failure to educate is another concern facing school risk managers. The federal Individuals with Disabilities Act (IDEA) – which guides how states and public agencies provide early intervention, special education and related services to children with disabilities – requires that states provide “free and appropriate public education.” Schools must provide education suitable to individuals with certain functional needs through therapies and individualized educational plans (IEPs).

•

Litigation involving the IDEA has long impacted K-12 schools and several class actions specifically alleged that online schooling policies implemented during the pandemic violated the law. The fully remote and hybrid learning models many school systems used during the COVID-19 pandemic created a unique set of challenges for students with IEPs. These challenges were recognized in a national survey conducted by the American Institutes for Research (AIR), which found that such educational approaches made it difficult for school districts to meet those requirements, particularly in fulfilling accommodations and specially designed instruction and adhering to referral and evaluation procedures and timelines. Even though education has largely returned to in-person settings, failure to educate allegations will likely continue. To help mitigate the possibility of such claims, school system and municipal risk managers can: • Adapt IEP meetings to a virtual environment. By adapting the delivery method for the IEP meeting, educational agencies are better equipped to meet IDEA

•

Part B service provisions and timeframe requirements for initial, annual, and re-evaluation IEP meetings. The Diverse Learners Cooperative (DLC) provides a checklist for conducting virtual IEP meetings, as well as engaging questions for consideration. Be flexible and creative with IEP requirements. The DLC suggests using “a variety of methods, materials, and team members to deliver high-quality services” and to “get creative with delivery through online and analog methods,” sharing examples of IEP service scenarios utilizing high- and low-technology options. Establish a process to evaluate student learning concerns. As learning platforms, teaching environments and curricula change, having a consistent way to identify concerns and decide when to make modifications is critical. Consider assigning responsibility for evaluation to a dedicated official. There are various online tools for progress monitoring to assist with the evaluation process, such as Marshall Street’s Virtual Progress Monitoring and the National Center on Intensive Intervention at AIR’s Tools Charts, which are available for both academic and behavior screening, progress monitoring, and intervention tools. Set a cadence for reaching out to families with IEPs and use a communication log for tracking. Encourage families to contact the district with questions or concerns and to flag emerging issues so they can be addressed. Consider increasing frequency of check-ins between educators and families and also using a communication log to help track completed touchpoints and topics discussed and to schedule future calls. Notify the district’s insurance carrier as soon as issues emerge. Set up a conference with the family as soon as any complaints or allegations that an IEP isn’t being followed come to light to try to reach a resolution. Reach out to the district’s insurance agent or broker to discuss the current insurance program and to determine whether it would benefit by including Educator’s or School Leader’s Errors and Omissions coverage or a similar professional liability policy. Failure to educate claims can be costly to defend, and these policies typically cover

nonmonetary defense costs, along with claims handling and legal expertise from the carrier or claims administrator. • Seek guidance from the federal and appropriate state Department of Education to ensure compliance. Rising student mental health issues is another leading challenge. As school administrators and instructors know firsthand, the post-COVID-19 return to school has coincided with an alarming uptick in mental health issues among K-12 students. Blaming the problem on the pandemic alone, however, is a mistake. Student mental health was a simmering issue that has been exacerbated by COVID-19. While the situation can feel overwhelming, there are concrete steps school leaders can take right now to both support students struggling with mental health and help reduce risk. The Cornell Mental Health seven-step framework is a great place to start. Its seven-step framework draws on research of the best practices advocated by leading resources in suicide prevention and mental health in education.

As school administrators and instructors know firsthand, the post-COVID-19 return to school

has coincided with an alarming uptick in mental health issues among K-12 students.

Those steps include: • Foster a healthy educational environment • Promote social connectedness and resilience • Promote help-seeking behaviors and minimize stigma • Help identify students in need of support • Adjust approach to intervention and utilize all health resources • Deliver coordinated crisis management • Restrict access to means of violence

but essentially eliminate the statute of limitations, extend it or open a “lookback” window for expired civil and criminal claims to be filed.

Sexual misconduct is the fourth top challenge facing school systems.

The best practices for helping protect students and systems from these horrific events include: • Screen and hire teachers with a consistent, transparent and thorough process. Once the policy is set, it should be rigorously applied. Following that process in today’s tight labor market will help prevent such incidents in the future. • Set clear policies for the administration and front-line teachers. These should include well-defined procedures for proactively

Tragically, there have been a number of recent notorious events. At the same time, states across the country have enacted so-called “reviver” statutes, which allow legal claims for sexual abuse to proceed that would have expired due to time constraints. These statues vary by jurisdiction,

As a result, this long-tail coverage is now even longer. This, together with increasing claim frequency and severity, has led to rising insurance rates and tightening Terms & Conditions and capacity for sexual misconduct and molestation policies.

identifying, reporting, investigating and following up on potential misconduct. • Consistently and transparently enforce all policies, and hold staff accountable for adhering to policies, including if they see something, say something. • Take swift action in good faith. While school risk mangers face these and other challenges, there are a number of resources available to help them develop comprehensive risk management and mitigation programs to better protect students, teachers and always tight school budgets. Doug Manwaring, Liberty Mutual Chief Underwriter, Public Entities, heads of team providing risk management and mitigation solutions for municipalities and schools. Mike Glover, Liberty Mutual Claims Manager, oversees school claims across coverage lines and geographies.

JULY/AUGUST 2022 | PUBLIC RISK

Understanding What Medical Bills the Jury Sees: A Primer on Florida Law for Risk Managers

BY JENNIFER SMITH THOMAS

ne of the most important factors in determining the valuation of a general liability/personal injury claim is past and future medical bills. In order to

understand the value of these numbers, one should be familiar with how

Florida law treats past and future medical bills in the context of what is shown to the jury. Lawyers call this “blackboarding.”

PUBLIC RISK | JULY/AUGUST 2022

Florida’s case law landscape regarding the treatment A common misperception is that all medical expenses are created equally. Plaintiffs should only be entitled to what they paid or for what benefit they received through insurance or other plans. Think again. Florida case law is riddled with opinions (which have changed dramatically over time) applying the Collateral Source Rule and exceptions as to private pay plaintiffs, privately insured plaintiffs, and Medicare/ Medicaid insured plaintiffs. The Collateral Source Rule, codified at Florida Statute 768.76, in pertinent part, states that in any action where liability is determined and damages awarded, the court shall reduce the amount of award by the total amounts which have been paid for the benefit of the claimant. This might include private insurance payments, a contract to reduce health care expenses, health, sickness or disability insurance, a wage continuation plan, etc. Navigating this Section’s applicability to the different types of medical expenses plaintiffs seek to blackboard is complicated. Let’s take a look.

PRIVATE PAY/OUT OF POCKET EXPENSES

Whether past or future, as long as reasonable in need and expense, out of pocket expenses by the plaintiff for past or anticipated future medical bills are fully reimbursable. The jury will see the full amount billed for past medical bills and the full amount anticipated to be required for the plaintiff’s ongoing medical care. This make sense, because the idea is to make the plaintiff “whole.” In other words, where the plaintiff is successful in proving liability for an injury, the plaintiff should be fully compensated for anything he paid to cover those medical expenses. Florida’s case law landscape regarding the treatment of past and future medical bills as it relates to private insurance, Medicare, and Medicaid becomes a little less easy to navigate.

FUTURE MEDICAL BILLS

Florida law restricts recovery of future medical expenses to those expenses reasonably certain to be incurred. Testimony or evidence that certain treatments might possibly be obtained in the future cannot merit an award of future

of past and future medical bills as it relates to private insurance, Medicare, and Medicaid becomes a little less easy to navigate.

expenses. Further, there must be competent evidence to support the reasonableness of the costs of the future medical expense, and past medical expenses alone do not provide a reasonable basis for a jury to draw inferences to compute the cost of future medical care.

PRIVATE INSURANCE/OUT OF POCKET

We know that insurance companies negotiate payment terms with providers and receive a discounted rate for the payment of an insured’s care. But what does the jury see, especially, if the jury is not allowed to know a plaintiff is insured? Florida Courts have consistently made it clear that there is no right to discount, or setoff future damages that have not been incurred. A setoff is a deduction of an amount accounting for other payment sources; one such source is a collateral source. This reasoning stems from Florida’s definition of a collateral source (payments from which can be set off from the verdict) as benefits “available” to the plaintiff: those that have already been paid or that are presently due. In sum, there is no discount or setoff applied to future medical bills under private insurance plans or plaintiffs who are uninsured.

MEDICARE/MEDICAID

In 2015, one of the most important developments in the evidentiary medical bill landscape occurred. In Joerg v. State Farm, the plaintiff sought to exclude evidence of collateral source benefits to which he was entitled, including discounted benefits under Medicare and Medicaid. The Florida Supreme Court held that the trial court properly excluded evidence of Joerg’s eligibility for future benefits from Medicare, Medicaid and other social legislation as collateral sources. The Court reasoned, among other rationales, that it was entirely speculative to attempt to calculate the damage award based on benefits that a plaintiff has not yet received and may never receive, should either the plaintiff’s eligibility change or the benefits cease to exist.

PAST MEDICAL BILLS

In general, there are three approaches to the Collateral Source Rule across the U.S., which influence whether evidence of past medical bills are admissible and may be considered by a jury where private insurance is involved. Maximilian Atchity, Is Universal Healthcare Really the Death of Medical Expense Awards? The Current and Future State of the Collateral Source Rule, 73 BAYLOR L. REV. 642, 661 (2021). The “Amount Billed” approach, adopted in thirteen jurisdictions, allows plaintiffs to recover the full amount billed from the provider. Id. The “Amount Paid” approach, adopted by six jurisdictions, states that plaintiffs can only recover the actual amount paid for medical services. Id. at 664. And the “Reasonable Value” approach, adopted by thirteen jurisdictions and allowing a plaintiff to recover the “reasonable value” of their medical expenses. Id. at 666. However, even within these three categories, there are variations in implementation among the states that employ them. For example, both Missouri and Florida are considered “Amount Paid” jurisdictions. Id. at 664. However, in Missouri, evidence of the amount actually paid by a collateral source may be presented to the jury for consideration, whereas in Florida, evidence of the collateral source may not be given to the jury but can provide the basis for a post-verdict reduction of a medical damages award. MO. REV. STAT. § 490.715 (2017); Goble v. Frohman, 901 So.2d 830, 835 (Fla. 2005). Additionally, whether a plaintiff is entitled to benefits such as Medicare and Medicaid complicates the issue, although most states apply their approach to the Collateral Source Rule to these contexts. Id. at 668.

PRIVATE INSURANCE

Under Florida’s Collateral Source Rule, the jury is not allowed to see evidence of collateral sources in determining its verdict. Florida courts have consistently ruled that a privately insured plaintiff may enter evidence of all of

JULY/AUGUST 2022 | PUBLIC RISK

UNDERSTANDING WHAT MEDICAL BILLS THE JURY SEES

its past medical bills, as billed by the provider, without regard to reductions, discounts, or negotiated rates. Why is this problematic for defendants? For example: plaintiff introduces $100,000 of past medical bills billed to his insurance carrier. Insurance carrier pays a negotiated rate of $40,000. For the purpose of allocating pain and suffering damages, assume the jury multiples the value the past medical bills three times. This means the jury, not knowing about the reduction, awards the plaintiff $400,000 instead of $160,000. The inflated medical bills can really make a difference. Of course, the Court will, post-verdict, reduce the award by the collateral source payment: in this example, $40,000. That means the plaintiff goes home with $360,000 in past medical expenses alone. In the jurisdictions employing the “Amount Billed” approach, including Colorado, Washington, D.C., and Georgia, the court would not reduce this jury award whatsoever. In these states, any evidence of payments by private insurance is inadmissible and thus may not be considered by the jury in making their award determination nor by the court for the purposes of reduction. Id. at 661. In “Reasonable Value” jurisdictions, including Illinois, Washington, and Ohio, the outcome often depends on which evidence the plaintiff chooses to present to the jury. The Supreme Court of Ohio in Robinson v. Bates, for example, held that a plaintiff may present “both the amount originally billed by the provider and the amount paid by the insurer” to prove the reasonable value of medical treatment. 857 N.E.2d 1195, 1196 (Ohio 2006). Proof of the amount billed or paid constitutes prima facie evidence of the reasonableness of these charges. Id. at 1197. Thus, plaintiffs may choose which evidence to present to the jury, and the jury can then use all of this evidence to determine a reasonable award of medical expenses.

MEDICAID/MEDICARE

In the years after Joerg, Florida courts have consistently confined the Joerg ruling to the admissibility of evidence regarding plaintiff’s future medical expenses covered by Medicare or Medicaid. Previously, however, we didn’t

PUBLIC RISK | JULY/AUGUST 2022

Medical Expense Type

Provider/Payment

Admissibility

Private Pay/ No Insurance

What was billed to patient

Private Insurance

What was billed to patient (with right of setoff to what was paid by insurance post-verdict)

Medicare/Medicaid

Adjusted paid amount by Medicare/Medicaid

Private Pay/ No Insurance

Reasonably anticipated to be billed to patient

Private Insurance

Reasonably anticipated to be billed to patient

Medicare/Medicaid

Reasonably anticipated to be billed to patient

Past Medical Expenses

Future Medical Expenses

have black letter law that affirmed the manner in which most practitioners were operating: that only amounts Medicare or Medicare had paid as opposed to what was billed was admissible as to past medical expenses. In Florida’s latest Supreme Court ruling on the medical bills conundrum, Dial v. Calusa Palms Master Association, the Court confirmed that claimants may only submit evidence of past medical bills actually paid by Medicare as opposed to the unadjusted amount. Generally, states maintain their approach to the Collateral Source Rule when determining whether payments made by Medicare or Medicaid are admissible or may be considered by the jury. In other words, most of the states treat evidence of Medicare and Medicaid payments the same as private insurance payments. However, some jurisdictions, such as Delaware, New Jersey, and Michigan, do not follow their private insurance Collateral Source Rule approach, finding Medicare and Medicaid payments outside the scope of the Collateral Source Rule because they are government benefits. Katherine L. Vojas & Jeffrey E. Atkinson, Collateral Source: Constant Confusion, US Law Magazine, Spring 2022, at 25. Further complicating the Medicare/Medicaid issue are those states, such as Colorado, which apply their Collateral Source Rule to Medicaid, but not Medicare. Id. Overall, it appears the law in this area is generally unsettled and many states have yet to rule on the issue.

UNANSWERED QUESTIONS

The landscape of Florida’s evidentiary treatment of medical bills continues to evolve, and though the Court has recently provided additional guidance, questions remain. How will the courts treat the admissibility of Medicare Advantage Plan Medical Payments (Medicare Advantage Plan provides Medicare Coverage through a private-sector insurance company)? The same question applies as to the admissibility of Medicare Supplement or Medigap Plans, in which an insured pays a private insurer to cover the gaps not fully covered by Medicare A and B. Finally, how will the courts treat the increasingly popular Letters of Protection favored by the plaintiff’s bar to inflate the cost of medical care with an agreement to pay the provider a reduced amount from any settlement? The Dial case clarified any uncertainty and confirmed claimants may only submit evidence of past medical bills actually paid by Medicare as opposed to the unadjusted amount, however, Justice Polston’s concurring opinion (not binding) indicated that he favored limiting all past medical bill evidence to the amount that the provider was willing or required to accept, not just those paid by Medicare. This may suggest that our current Florida Supreme Court may be willing to change the forecast of the admissibility of the admissibility of medical expenses in Florida once again. Jennifer Thomas is a partner in the Orlando office of RumbergerKirk.

WHERE ARE THEY NOW? CATCH UP WITH PAST STUDENT SCHOLARSHIP RECIPIENTS

Every year, PRIMA brings students in risk and insurance programs to its Annual Conference. Where do they go once the conference ends? PRIMA’s new podcast series gives listeners the chance to catch up with these past Annual Conference Student Scholarship winners. The Where Are They Now? podcast series provides past scholars the opportunity to share their risk management journey since attending the Annual Conference. Hear from: • Carl Amritt, Analyst, D.C'.s Homeland Security & Emergency Management Agency • Nicholas Esty, Account Executive, Professional Liability Risk Placement Services • Debolina McClellan, Vice President, Sr. Product Manager, Galaxy Digital

primacentral.org/education/podcasts

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CALENDAR OF EVENTS PRIMA’s calendar of events is current at time of publication. For the most up-to-date schedule, visit www. primacentral.org.

to a common problem? A money-saving idea that kept a program under-budget? Each

month, Public Risk features articles from practitioners like you. Share your successes with your colleagues by writing for Public Risk magazine! For more information, or to submit an article,

contact Claire Howard at CHoward@PRIMACentral.org or 703.253.1262.

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PRIMA ANNUAL CONFERENCES June 4–7, 2023 PRIMA 2023 ANNUAL CONFERENCE Long Beach, California Long Beach Convention Center June 16–19, 2024 PRIMA 2024 ANNUAL CONFERENCE Nashville, Tennessee Gaylord Opryland Hotel June 1–4, 2025 PRIMA 2025 ANNUAL CONFERENCE Seattle, WA Washington State Convention Center

PRIMA WEBINARS July 27 Risk Management’s Role in Addressing the Insider Threat Security Risk August 31 Confessions of a Traveling Zombie: Four Tools to Navigate to Great Human Performance September 28 Risk Owners: Who, How and What Do They Do? October 26 Risk Management in a Time of Volatile Insurance Markets and Ever Increasing Natural Disasters November 16 Active Shooter: Prevention and Preparedness

Keep up with what’s happening at PRIMA and connect with your risk management peers!

December 14 The Power of Partnerships in a Continuously Connected World

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October 17-21, 2022 Old Town Alexandria, VA The Westin Alexandria Old Town

N O W AVA I L A B L E A N Y T I M E

Diversity & Inclusion Series PRESENTED BY MAU RICIO VEL A SQU EZ , PRE SID ENT A ND CEO O F DIV ERSIT Y TR AININ G GROUP PRIMA’s next members-only education series is a vital and timely look at workplace diversity and inclusion, taught by a subject matter expert and presented over five weeks. • WEEK 1: Diversity & Inclusion, Being a D&I Change Agent • Week 2: Age Diversity - Multiple Generations in the Workplace • Week 3: Sexual and General Harassment Prevention • Week 4: Toxic Employee-Toxic Workplaces, How to Deal with Them • Week 5: Emotional Intelligence - The New Interpersonal Frontier

L O G I N AT P R I M A C E N T R A L . O R G

Create an ORGANIZATIONAL CULTURE that proactively MANAGES RISK

VIRTUAL SCHEDULE

ENTERPRISE RISK MANAGEMENT TRAINING DAY 1: JULY 12 12 – 2 PM EST

DAY 3: JULY 18 12 – 2 PM EST

DAY 2: JULY 14 12 – 1:30 PM EST

DAY 4: JULY 20 12 – 2 PM EST

VISIT PRIMACENTRAL.ORG/ERMTRAINING