PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION MAY/JUNE 2018
NEBRASKA RISK MANAGER BECOMES PRIMA’S PRESIDENT MEET JANI JENNINGS PAGE 6
ALSO IN THIS ISSUE
BENEFITS AND CHALLENGES OF GOVERNMENT SOCIAL MEDIA USE
PAGE 12
COMBATING OPIOID MISUSE
PAGE 16
CHRONIC PAIN FOR AN AGING WORKFORCE (AND MILLENNIALS TOO!) PAGE 20
PROTECTING PUBLIC ENTITIES IN PUBLIC PRIVATE PARTNERSHIPS PAGE 24
PRIMA ANNUAL CONFERENCE PREVIEW PAGE 28
PR
ER
Specialized Offerings. Public Entity Expertise.
UP D S PORT OU
PRIMA 2018
BITCO Insurance Companies1 Old Republic Aerospace2 Old Republic Specialty Insurance3
Old Republic Insurance Group offers a full suite of risk management and insurance solutions, and Third Party Administration (TPA) services, with specialized offerings and expertise to meet the unique needs of public sector clients.
PMA Companies3
www.orgig.com
Insurance contracts are underwritten and issued by: 1. BITCO General Insurance Corporation and BITCO National Insurance Company; 2. Old Republic Insurance Company; 3. Pennsylvania Manufacturers Association Insurance Company, Manufacturers Alliance Insurance Company, Pennsylvania Manufacturers Indemnity Company.
MAY/JUNE 2018 | Volume 34, No. 5 | www.primacentral.org
CONTENTS
The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.
PRESIDENT Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN PAST PRESIDENT Terri L. Evans Risk Manager City of Kingsport Kingsport, TN PRESIDENT-ELECT Jani J. Jennings, ARM Risk Manager City of Bellevue Bellevue, NE
Nebraska Risk Manager Becomes PRIMA’s President MEET JANI JENNINGS
6
By Jennifer Ackerman, CAE
12 Benefits and Challenges of Government
Social Media Use By Thom Rickert
16 Combating Opioid Misuse
By Nikki Wilson, Pharm.D.
20 Chronic Pain for an Aging Workforce
By Kevin Lombardo
Private Partnerships By Amanda Franklin, J.D.
28 PRIMA Annual Conference Preview
Scott J. Kramer, MBA, ARM City/County Director of Risk Mgmt Montgomery County Commission Montgomery, AL Forestine Carroll Risk Manager Memphis Housing Authority Memphis, TN Sheri Swain Director of Enterprise Risk Management Maricopa County Community College District Tempe, AZ Lori J. Gray Risk Manager County of Prince William Woodbridge, VA Donna Capria, CRM, CIC, AINS Risk & Insurance Coordinator WaterOne of Johnson County Lenexa, KS NON-VOTING DIRECTOR Marshall Davies, PhD Executive Director Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org ADVERTISING Jennifer Ackerman, CAE 703.253.1267 • jackerman@primacentral.org
(and Millennials too!)
24 Protecting Public Entities in Public
DIRECTORS Brenda Cogdell, AIS, AIC, SPHR Risk Manager, Human Resources City of Manassas Manassas, VA
By Jennifer Ackerman, CAE
IN EVERY ISSUE
| 4 NEWS BRIEFS | 27 ADVERTISER INDEX
Public Risk is published 10 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 2018 Public Risk Management Association
MAY/JUNE 2018 | PUBLIC RISK
1
MESSAGE FROM PRIMA PRESIDENT AMY J. L ARSON, ESQ.
s I reflect on my year as your PRIMA president, the words to the song at the end of the Carol Burnett weekly TV show keep coming to mind. I cannot believe that my year is about to come to an end. I want to thank all of PRIMA’s members for giving me this once-in-a-lifetime opportunity. I’m very proud of the educational programs that PRIMA has to offer and am grateful for the PRIMA members, board members, committee volunteers, corporate partners and staff that have worked long and hard to help us advance the public risk management profession. So, as I get ready to say “So Long,” I’d like to thank the following groups and people: Volunteers. I want to thank all the 30+ volunteers who were assigned to our three committees: Education, Chapter Relations and Membership Enhancement and External Affairs, as well as those volunteering for the Loss Control, PRIMA Institute and Cyber Liability task forces. Thank you for being so generous with your time and expertise to help create new, as well as enhancing current, educational opportunities for our members! 2017-2018 PRIMA Board of Directors. This great group of people included past PRIMA president, Terri Evans, City of Kingsport, Tenn.; PRIMA president-elect, Jani Jennings, City of Bellevue, Neb.; Scott Kramer, City and County of Montgomery, Ala.; Lori Gray, Prince William County, Va.; Donna Capria, WaterOne of Johnson County, Lenexa, Kan.; Brenda Cogdell, City of Manassas, Va.; Sheri Swain, Maricopa County Community College District, Ariz.; and Forestine Carroll, Memphis, Tenn. Housing Authority. I want to thank each and every one of you for all of the time, effort and support of you
“
“
A
So Long, But Not Goodbye …Seems we just got started and before you know it, comes the time we have to say ‘So Long.’
has put into being a board member. I appreciate each and every one of you, and will remember all of the laughs we have shared along the way as well as pride I felt in the programs we helped put in place over the past year. I’d also like to congratulate Melissa Steger, University of Texas System, and Michael Payne, City of Fresno, Calif., for being elected to the board, as well as a special shout out to our soon-to-be president elect, Scott Kramer. Finally, a thank you to all of the board members who have come before me in acknowledgement of all the work they did to help make PRIMA the great organization it is. The 2017–18 Conference Planning Committee and Corporate Partners. While I could have included this group in with my thank you to the volunteers above, I didn’t because I wanted to express my gratitude to all of PRIMA corporate members and partners. I know that you not only help PRIMA by providing speakers and resources for our Annual Conference and other educational programming, you also support many local chapters in a similar way. Thank you for all of your efforts and I hope the partnership between PRIMA and these entities continues to be strong. PRIMA staff. I would be remiss if I didn’t acknowledge and thank each member of the PRIMA staff, the unsung champions of both the organization and our programs. Without all of you, our programs, both current and those in the development stage, would not go off without a hitch as they do now. Please join me in thanking PRIMA staff when you see
them at the Annual Conference for all of their hard work: Melvin Bodmer Jr., office manager; Shaunda Ragland, director of education; Taquan Gilbert, program assistant; Dannieka Williams, manager, member services; and Monique Gilliam, manager of meetings and conferences. I want to give a special thank you to Jennifer Ackerman, deputy executive director and Marshall Davies, executive director. With the two of you at the helm of PRIMA, I have no doubt this organization will continue to thrive. Finally, as I noted in my first paragraph, I want to thank the PRIMA membership. I encourage each one of you to continue to make this organization THE public risk management resource that it has become over the past years. Volunteer for a committee or task force and give back to the public risk management profession. And, while this is my final column, I’m not saying goodbye. I hope to be able to continue to give back to this organization that has meant so much to me and given me support during my public risk management career. So for now, I say… “So Long.”
Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN
MAY/JUNE 2018 | PUBLIC RISK
3
NEWS BRIEFS
NEWS Briefs UTAH ADOPTS NATION’S FIRST ‘FREE-RANGE’ PARENTING LAW Utah has adopted a “free-range parenting” law, the first state in the country to formalize the hands-off child-rearing trend.
kids. I sponsored SB65 so that parents wouldn’t be punished for letting their kids experience childhood.”
Gov. Gary Herbert signed the law last week. It goes into effect May 8.
The bill technically redefines negligence so that a parent can’t be charged for letting children walk alone outside, play outside without supervision, go to the store alone or wait in the car without an adult or other independent activities.
“Kids need to wonder about the world, explore and play in it, and by doing so learn the skills of self-reliance and problem-solving they’ll need as adults,” State Sen. Lincoln Fillmore said in a statement to ABC News. “As a society, we’ve become too hyper about ‘protecting’ kids and then end up sheltering them from the experiences that we took for granted as we were
The bill, which stipulates but does not define that children must be of “sufficient age” to do things on their own, passed the Utah House and Senate with unanimous support.
AS AMAZON STEPS UP TAX COLLECTION, SOME CITIES ARE LEFT OUT When Amazon agreed last year to begin collecting sales tax in New Mexico, state officials celebrated what they said could be tens of millions of dollars in annual tax revenue. But they aren’t cheering in Albuquerque City Hall. A year after that announcement, New Mexico’s largest city hasn’t seen a dime from Amazon. That’s because the online shopping giant’s deal applied only to the 5.125 percent statewide tax, not to the 2.375 percent tax tacked on by the City of Albuquerque.
“
“The loser in that arrangement is cities,” Mayor Tim Keller said. “Cities are really being left to themselves.” Thanks in part to a series of deals with state governments in recent years, Amazon is collecting sales tax in every state that has one. But those deals don’t always extend to taxes assessed by local governments. The company still isn’t collecting sales taxes in dozens of cities, including Philadelphia, Pittsburgh and Cedar Rapids, Iowa, according to a new report from the Institute on Taxation and Economic Policy, a left-leaning think tank.
4
PUBLIC RISK | MAY/JUNE 2018
GOVERNMENTS INCREASINGLY TAX UBER AND LYFT FOR TRANSIT REVENUE
The move comes on the heels of a similar one in Chicago, where late last year the city council slapped a 15-cent increase to its existing 52-cent fee for every ride-sharing trip. Mayor Rahm Emanuel pushed for the fee amid a growing body of evidence that the popular ride-sharing industry is worsening congestion in cities and taking potential customers away from public transit. Last year, transportation researchers from the University of California, Davis, published a working paper that found that ride-sharing services in seven major urban areas were adding car trips to city and suburban streets, often at the expense of public transportation. And a study released this year by Boston’s Metropolitan Area Planning Council found that most ride-sharing passengers used the service in place of public transit, biking or walking. In addition to New York and Chicago, cities in Massachusetts have also implemented or raised existing fees and taxes on ride-sharing services for transit funding. Washington, D.C., and Oakland, Calif., are considering doing the same;
while an effort in Georgia to enact a statewide fee has recently been revived. Unsurprisingly, the new taxes aren’t popular with the ride-sharing industry. These services argue they’re being unfairly targeted and that such charges would not only hurt consumers but also slow services. What’s more, ride-sharing companies say they’re developing new products that are specifically aimed at reducing congestion. In 2014, Uber launched a carpooling feature as part of CEO Travis Kalanick’s goal to eventually make every ride shared. Now available in 32 cities, uberPOOL accounts for about 20 percent of Uber trips in those jurisdictions. But from a tax policy point of view, these types of taxes and fees aren’t new and shouldn’t come as a surprise. The Urban Institute’s Richard Auxier says that if a city has a track record of expanding its sales tax to services, ridesharing is a natural target. “This is just taxing something that should have been previously taxed,” he says. For instance, the nation’s capital already imposes sales taxes on services such as landscaping and gym memberships. A proposal in next year’s budget would simply increase the tax rate paid by ride-hailing services from 1 percent to 4.75 percent. The proposal also calls for a sales tax hike from 5.75 to 6 percent. The $18 million in
“
new revenue that ride-sharing would contribute is part of a larger effort to step up funding for the region’s aging rail system. Conversely, New York’s new fee charges $2.75 per ride-sharing trip and an extra $2.50 on taxi rides in the same zone. “That would be an example of a punitive tax on a disfavored entity,” says Joseph Henchman, executive vice president of the conservative-leaning Tax Foundation. He questions how much the state has done previously to discourage driving and encourage mass transit, adding that “if they’re not serious about tackling some of those things, it seems like a way to grab revenue.” Still, despite Uber and Lyft’s popularity, taxing the services won’t result in a very large revenue boost for mass transit. Put in perspective, the $18 million D.C. hopes to raise from its tax hike would represent just 10 percent of the city’s annual payment into the region’s metro rail and bus system. That’s pocket change compared to the $500 million the system hopes to receive annually from the District and surrounding states. Metro’s annual budget for operating costs and capital improvements is about $3 billion. “Will it help fund Metro and does the state want that money? Absolutely,” says Auxier. “But this is not going to solve any budget problems.”
This is just taxing something that should have been previously taxed.
“
New York joined a growing number of governments when it placed a fee on ride-hailing services such as Uber and Lyft. The state-imposed surcharge, which is part of New York’s 2019 budget, is intended to raise money for mass transit.
Richard Auxier, The Urban Institute
MAY/JUNE 2018 | PUBLIC RISK
5
6
PUBLIC RISK | MAY/JUNE 2018
NEBRASKA RISK MANAGER BECOMES PRIMA’S PRESIDENT
MEET JANI JENNINGS BY JENNIFER ACKERMAN, CAE
I
N INDIANAPOLIS, PRIMA will not only host its 2018 Annual Conference, but the association will welcome its 2018–19 president, Jani Jennings, risk manager for the City of Bellevue, Neb. Jennings has worked for the City of Bellevue since 2005. Like many risk managers, she came into the job with a different role; in this case, HR specialist.
Left: Jani Jennings with Dave Strachota, acting chief of police for Bellevue, Neb.
“All other claims were filed in the city clerk’s office or went to our city attorney,” Jennings said. “My boss, at the time, was transitioning from the director of human resources to city administrator. He had the foresight to see the city needed a risk manager to work toward controlling our skyrocketing claims and insurance costs.”
ment is a department of two—Jennings and a safety inspector. Risk management for the City of Bellevue resides in the finance department.
“He promoted me to risk manager and simply said to me, ‘Fix it!’” she continued. “Thus, began my adventure into unknown territory!”
As president, Jennings will help shape the future of the association, including its partnership with PERI, which was cemented in 2013.
The City of Bellevue is Nebraska’s oldest city, home to US StratCom at Offutt Air Force Base, and a population of 51,000. There are 650 employees who work for the city. Risk manage-
As she prepares for her June 6 inauguration, Jennings discusses her thoughts on the public risk management profession and her new role with PRIMA.
Jennings not only brings a passion for risk management to the role of president, but also years of experience in leadership positions with PRIMA, as well as with her local chapter.
MAY/JUNE 2018 | PUBLIC RISK
7
NEBRASK A RISK MANAGER BECOMES PRIMA’S PRESIDENT: MEET JANI JENNINGS
Risk managers today require a broader outlook
on their entity’s long-term strategic goals. While
our job still focuses on identifying and managing hazard risks, we are now focusing as well on
long-term goals of our entity, its reputation, its progress. We are helping upper management
achieve those goals while trying to identify and mitigate any “potholes” along the way.
PUBLIC RISK: HOW LONG HAVE YOU BEEN INVOLVED WITH PRIMA?
Jani Jennings: I have been involved with PRIMA for 12 years but it wasn’t until 2011 when I began to become active, serving on committees, moderating educational sessions and taking advantage of the wealth of knowledge PRIMA has to offer.
PR: WHAT IS THE BIGGEST BENEFIT OF BEING INVOLVED WITH PRIMA?
JJ: Aside from the obvious access to educational information specifically for public entities, I would say the networking with peers from all over the country who may experience the same challenges I do. With PRIMA, I am able to establish solid relationships with other risk managers to whom I can rely when I need to ask about a particular program, policy or procedure. It makes my job a whole lot easier!
PR: WHAT ARE YOUR GOALS FOR THE TERM OF YOUR PRESIDENCY? JJ: My hope is to continue the progressive path that the Board has travelled over the past several years. With a constant focus on
8
PUBLIC RISK | MAY/JUNE 2018
PRIMA’s mission: to advance the knowledge and practice of public risk management, I will continue to promote the premier educational resources PRIMA extends to public risk managers: PRIMA Institute, the Enterprise Risk Management Training Program, the podcasts, webinars, and of course the ever-important Annual Conference. I plan to take advantage of the knowledge and experience present in our current membership, appointing members to serve on new task forces for emerging risks and new programs. I also want to make sure the Board continues to foster great relationships with our corporate partners, depending on their advisements and insight.
PR: WHAT ARE SOME OF THE BEST THINGS PRIMA OFFERS ITS MEMBERS?
JJ: Where do I start? If a risk manager had nothing but time, they could get lost in all the educational resources PRIMA has available. If one only participated in the online listserv, PRIMAtalk, one could solve a problem or develop a policy every day with the expert advisements! Just browsing the website, you’ll be able to find a plethora of information unique to our industry and not found on any other website. That is phenomenal to me.
PR: WHAT IS THE ONE THING PRIMA OFFERS THAT ITS MEMBERS DO NOT TAKE ENOUGH ADVANTAGE OF?
JJ: I have to say the Risk Manager’s Briefing Kit. We are undertaking a revision now on the kit and will market it to our members as a means of assistance to that busy risk manager who may be asked at 2:00 pm to give a presentation to the City Council at 6:00 pm on (fill in the blank). PRIMA comes to the rescue once again with templates so that risk managers do not have to reinvent the wheel every time they are asked to present or educate others.
PR: WHAT SKILLS DO RISK MANAGERS NEED TODAY THAT THEY DID NOT NEED IN THE PAST?
JJ: Risk managers today require a broader outlook on their entity’s long-term strategic goals. While our job still focuses on identifying and managing hazard risks, we are now focusing as well on long-term goals of our entity, its reputation, its progress. We are helping upper management achieve those goals while trying to identify and mitigate any “potholes” along the way.
PR: WHAT CAN PRIMA DO TO SUPPORT THE NEW CHALLENGES RISK MANAGERS FACE? JJ: I think PRIMA is very good at recognizing the ever-changing challenges risk managers face. I would like to see PRIMA continue to stay ahead of the curve and develop new programs and educational tools to support our members with those new challenges.
PR: WHAT PRIMA BENEFITS HAVE YOU TAKEN ADVANTAGE OF?
JJ: As many as I could! Like a kid in a candy store, I have been able to find everything I need with PRIMA. Starting with reading the information on the website, to attending Annual Conference sessions to borrowing policy templates in the Cybrary, whenever I need something, I can find it through PRIMA. What has been most helpful? I think for myself, the Annual Conference has been the most beneficial. The expert speakers that present on cutting-edge topics have always helped me face my next new challenge when I go back home to the office!
PR: WHAT ARE THE BIGGEST CHALLENGES RISK MANAGERS FACE IN THE NEXT YEAR? IN THE NEXT FIVE YEARS? JJ: Within the next year, I believe risk managers are going to be challenged by finding ways to deal with the opioid crisis, continued cyber risks, and the challenges of school risk management and protecting our students. I believe the next five years will bring new challenges associated with aging workforces as more and more people delay retirement, dealing with smart city technology, and changing procedures for police forces as divisiveness among people continue to bring threats of violence.
PR: WHAT IS THE BIGGEST CHALLENGE YOUR OWN ENTITY HAS FACED IN THE LAST 5 YEARS?
JJ: As an entity, I believe acclimating to newly elected officials and appointed city management. There is always a learning curve staff needs to go through whenever the administration changes. Our previous administration had some aggressive changes and with the current administra-
tion, we’re experiencing a “change-back.” While it’s a good thing, it is taking time to adjust and implement new policies and procedures and getting buy-in from the unions.
PR: HOW DID YOU DEAL WITH IT? JJ: I’m still wading through it!
PR: DID BEING A MEMBER OF PRIMA HELP YOU?
JJ: Yes, PRIMA has helped me, not only with the educational expertise it’s given me but the confidence I’ve attained by sitting on the Board has helped me more effectively address the challenges presented by the union or directors. Additionally, for me personally, one of the biggest challenges that I have faced as a risk manager over the last five years was establishing a trusting relationship with the police department, particularly the command staff. The former police department was basically its own “island.” Trying to reign in procedures, policies or offer advisements were met with callous resistance. A change at the top (Chief of Police) offered an opportunity for me to begin again. Upon a visit with the new chief in his office, we accidently learned we both had an enthusiastic fondness of Gordon Graham. We shared stories back and forth as if we were talking about a delightful old uncle! Through that conversation, I was able to relay to him the importance of working together with him to keep his police force out of harm’s way and out of the courtroom. The tide turned rather quickly after that, and since that day the command staff and I have progressively made strides to decrease liability and work comp costs, communicate quickly over matters of importance, and take time to listen to one another’s concerns or challenges.
PR: WHAT CAN PRIMA MEMBERS DO TO GET THE MOST OUT OF THEIR PRIMA MEMBERSHIP? JJ: PRIMA members should peruse the website often to learn about upcoming educational opportunities. They should also reach out to a veteran PRIMA member through the online communities to learn from the masters!
PR: WHERE DO YOU SEE YOURSELF IN FIVE YEARS?
JJ: I hope I still see myself working long hours here at the City of Bellevue trying to keep staff safe and out of trouble! I know I’ll still see myself involved with PRIMA in some way, shape or form. PRIMA has given me so much. It truly has defined who I’ve become as a risk manager. I want to give back, serve, do what I can to continue to promote this wonderful profession and assist not only the newly appointed risk managers but those that need a little boost from time to time. Jani Jennings will be sworn in at PRIMA’s membership luncheon on Wednesday, June 6, in Indianapolis, Ind.
I think PRIMA is very good at recognizing the everchanging challenges risk managers face. I would like to see PRIMA continue to stay ahead of the curve and develop new programs and educational tools to support our members with those new challenges.
MAY/JUNE 2018 | PUBLIC RISK
9
Your community is unique. The decisions you make everyday aim to protect that. We’re specialists dedicated to safeguarding public entities with a daily focus on providing customized property and casualty insurance solutions. Our in-depth knowledge and daily focus on local governments mean we understand your unique and specific insurance needs—wherever you are located. Stop by booth #409 at the National PRIMA Conference to learn more about how we can become your partner.
A Member of OneBeacon Insurance Group Policies may be underwritten by Atlantic Specialty Insurance Company or OBI National Insurance Company
866.971.6247 | onebeacongov.com | @OneBeaconGov
BENEFITS and CHALLENGES of GOVERNMENT SOCIAL MEDIA USE Social media has become today’s town square, local newspaper and neighborhood coffee shop rolled into one. BY THOM RICKERT
12
PUBLIC RISK | MAY/JUNE 2018
J
ust as fictional TV newsman Ted Baxter on The Mary Tyler Moore Show had humble beginnings (“It all started at a 5,000-watt radio station in Fresno, California”), so did social media. Emerging as bulletin board systems (BBS), progressing to platforms like CompuServe and AOL, then transforming to the now-ubiquitous Facebook, LinkedIn and Twitter, social media has evolved from a unique space for narrowly focused hobbyists to the medium of choice for information sharing. And as social media use grows in popularity, local governments are under considerable pressure to keep up. The benefits are clear. For example, social media can be a cost-effective communications tool for cash-strapped municipalities looking to fulfill mandates, increase public participation and encourage greater social activism. But the profound public nature of social media—the posting and sharing of vast amounts of information, the direct interaction with more and more citizens—may pose threats to privacy and other basic constitutional rights.
MOST COMMUNITIES NOW COUNTED AMONG SOCIAL MEDIA USERS
A city in Canada has experimented with a mobile app that lets people know when their streets will be cleared of snow. A small town in Spain uses Twitter to connect citizens directly with public works personnel in the field. A public health department in Ohio uses social media to share the latest information about the H1N1 virus. A growing number of municipalities are discovering the value of social media for interacting with their citizens. Some public entities favor the swift and efficient exchange of ideas—a throwback to the open public forums that once defined engagement in towns across America. Facebook, Twitter, blogs, LinkedIn, Pinterest, Instagram, YouTube and others have become essential communications vehicles for the public and, in turn, are equally vital to the institutions that serve it.
THE ADVANTAGES FOR GOVERNMENTS USING SOCIAL MEDIA
Today, besides people using it to share the latest cute kitten video or network with like-minded professionals, local governments are using social networking platforms to reach out to their citizens. Local governments using social media to engage with their communities can enjoy many benefits. The platforms can increase citizen participation in local decision-making, enhancing the public perception of the town, its leaders and staff. Local businesses, schools and nonprofits gain exposure by informing people about events, activities and fundraising efforts. Law enforcement gains support for its efforts to report and monitor public safety. Many cities and towns now routinely use social media to: • Host and share results of town halls and council meetings. • Aid crime prevention and other policing activities. • Deliver construction and road-closure updates. • Broadcast emergency alerts and severe weather updates. • Promote events and activities. • Make public service announcements. • Recruit employees. It is estimated that more than 85 percent of the 75 largest cities in the U.S. utilize social media, according to Rutgers. It has now filtered down
MAY/JUNE 2018 | PUBLIC RISK
13
BENEFITS AND CHALLENGES OF GOVERNMENT SOCIAL MEDIA USE
to smaller cities and towns, with more than 50 percent in some studies reporting a high level of use of at least two platforms.
THE CHALLENGES OF SOCIAL MEDIA
Although it has its benefits, all technology creates challenges and responsibilities. Cities should define what objectives they want to achieve with social media and align their presence with those goals. Commonsense policies and procedures should be written and broadly shared within departments. While some larger governments now have employees specifically hired to act as “social media coordinators,” most towns continue to administer their social media presence ad hoc. If you don’t have a staff position dedicated to social media, identify a heavy user who, with some training, will be willing to act as your “social media ambassador.”
CRAFTING A SOUND, LEGAL SOCIAL MEDIA POLICY
Understanding the legal implications is also crucial. Research your state’s policies for local governments on open meetings, public records and retention. Be aware of First Amendment implications, and remember that your archive policies must meet Freedom of Information Act requirements. Social media’s greatest strength may lie in the power of expression and the dialogue that it facilitates between public officials and the people they serve. The law has not yet determined that social media constitutes a public forum, yet it may be prudent to assume this is the case. Frequently, inquiries are made as to whether it is legally acceptable to attempt to shut down a social media voice who doesn’t agree with you or who criticizes your decisions and operations. It is inappropriate to restrict the First Amendment rights of citizens, elected officials and municipal employees about a public concern. They are entitled to express their opinions. But that comes with limits, and certain postings clearly fall outside the boundaries of protection—partly due to what constitutes a public concern. Personal attacks, personnel disputes and individual job
14
PUBLIC RISK | MAY/JUNE 2018
grievances, for example, are not considered fair game. Everyone should be instructed to use proper channels to discuss them. The policy should also be reviewed and approved by local legal counsel. But it’s meaningless if no one knows it exists. Social media policies are particularly important to publicize, since most people in the organization use various networking platforms. Some public entities require staff to sign a form indicating they have read and will comply with the policy by—among other things—being professional, truthful and considerate in what they post.
SOCIAL MEDIA AS AN EMERGING INSURANCE RISK AREA The law remains fluid on social media. But that’s also the case regarding insurance. A municipality using Twitter, Facebook or other types of third-party sites does not own or host the site. But a group or feature page may constitute something that it exercises control over. Material published to a site—even if later taken down—may continue to exist in some format. Potential coverage issues could arise in the event that a claim for damages involves previous publication years. In other key coverages for public entities—such as public official errors and omissions, law enforcement liability, and employment practices liability—exclusions and limitations may apply (for example, an exclusion or limitation for claims seeking injunctive relief). This continues to be an emerging risk area. Most insurers are monitoring the legal environment to determine if future adjustments in underwriting analysis, risk management best practices and coverage provisions will be needed.
SOCIAL MEDIA AS AN EFFECTIVE PUBLIC SAFETY TOOL Don’t let the challenges discourage your town from participating in social media. Citizens appreciate the information on severe weather and road closures, town meeting reminders, and the general opportunity to talk (yes, even virtually) with town leaders and fellow
citizens. Even more importantly, recent events—from multiple catastrophic hurricanes to the California wildfires—have shown how well-thought-out social media communication plans can enhance emergency management and response. Governments’ growing use of social media in areas such as public safety comes as an increasing number of people view it an important function. In the past two years, the number of citizens who believe governments should prioritize integrating digital services with social media doubled to 40 percent, according to Government Technology magazine in citing a report by Hootsuite. Governments’ use of social media can be a great benefit to communities. The key is ensuring it’s done right to help avoid legal issues and other potential pitfalls. Thom Rickert, CPCU, ARM, ARM-P, ARM-E, ARC, ARe, is the vice president, Head of Marketing, with Trident Public Risk Solutions.
MORE RESOURCES AVAILABLE Here are some helpful resources related to governments using social media. • Digital-experience expert Chris Boudreaux has compiled a social media policy database that includes many public entity examples. • The International City/County Management Association (ICMA) offers a guide titled Playbook: Social Media and Local Government. The playbook provides tips, strategies, examples and best practices for social media use to communicate efficiently and effectively with constituents. • The Institute for Local Government provides articles and tip sheets to help navigate the operational and policy issues that may arise when using social media.
Every community has a story. We help protect it. Travelers has solutions designed specifically for public entities. Our public entity experts work with local communities to design insurance programs tailored to their unique challenges — from public safety to catastrophic weather to online breaches of sensitive data. We are dedicated to helping communities protect themselves from the unexpected, so that they can continue to tell their stories. To learn more, contact your independent agent or broker.
travelers.com Š2015 The Travelers Indemnity Company. All rights reserved. Travelers and the Travelers Umbrella logo are registered trademarks of The Travelers Indemnity Company in the U.S. and other countries. 0427 Rev. 6-15
16
PUBLIC RISK | MAY/JUNE 2018
T
BY NIKKI WILSON, PHARM.D.
HE WORST DRUG OVERDOSE CRISIS IN U.S. HISTORY is driving policymakers to declare opioid-use disorder a national emergency and to seek new ways to
battle the epidemic. The workers’ compensation industry must likewise step up
efforts to protect patients and better understand how the top drug class among injured workers affects return-to-work and quality of life. Opioid misuse is costly in every sense. Beyond the consequences for a person’s health, the levy on a family can be devastating. Assaults on the wellbeing of individuals and families also feed broader societal harms. In workers’ compensation, the fallout from opioid misuse emerges in additional forms such as lost productivity, damage to workplace morale and the expense of hospitalization and other treatments. Prescription opioid misuse siphoned $78.5 billion from the U.S. economy in 2013, reports the National Center for Injury Prevention and Control, in its most recent findings. More than one third—$28.9 billion—reflects increased costs for health care and substance-use treatment. About one quarter of the cost falls on the public sector in the form of health care, substance-use treatment and criminal justice spending. The gravest risk from misusing opioids remains fatal overdose. The Centers for Disease Control and Prevention (CDC) report that nearly half of the nation’s fatal opioid overdoses involve a prescription analgesic and that deadly overdoses
involving a prescribed opioid have quadrupled since 1999. There are many ways to go about protecting patients from possible harm. First and perhaps most important, prescribers should ask whether a patient needs opioids. Opioids are not recommended to treat pain that is not severe. The American College of Occupational and Environmental Medicine (ACOEM) reports there is little evidence to support long-term opioid use for chronic pain unrelated to cancer. Prescribers face other considerations as well. A patient’s complete medication regimen and comorbid conditions can shape his or her response. Doctors should exercise extreme caution when prescribing opioids for patients taking other central nervous system depressants such as sedative hypnotics (sleep aids), skeletal muscle relaxants, benzodiazepines, antihistamines and illicit substances as well as alcohol or tobacco. Patients facing mental health conditions, untreated sleep disorders such as sleep apnea and pulmonary disease also merit particular caution.
MAY/JUNE 2018 | PUBLIC RISK
17
COMBATING OPIOID MISUSE
There are important steps prescribers can take to deter opioid misuse, though they can’t wage this fight alone. There are measures the workers’ compensation industry can deploy to curb misuse as well. We should start by recognizing the best methods to prevent overdose, as well as to manage injured workers taking opioids. Next, we should attack the source of the problem by further constricting the flow of opioids going to injured workers. Last, we must find new, more effective ways to help injured workers recover from the effects of opioid misuse and, ultimately, return to productivity and good health. Evidence about what works should serve as the signposts guiding our collective response. Several national organizations have produced recommendations on when to prescribe opioids and when to continue or discontinue them. These evidence-based protocols include the appropriate durations of use according to injury type, dosing limitations, when to involve a pain specialist, how to identify whether a patient is a candidate for opioid therapy, what to monitor throughout treatment and how to manage side effects.
These include opioid prescriptions filled from multiple prescribers or pharmacies, high-risk drug combinations, prolonged opioid use and a high morphine equivalent dose. Risk-modeling can trigger alerts for instances in which urine drug testing might be appropriate; and the system should guide the testing process and any necessary subsequent patient management. A PBM should also be alerting claim management professionals to suspicious prescribing behavior and requesting that specific prescriptions be further evaluated before being approved. At a more fundamental level, prescribing protocols surrounding a PBM’s drug formulary should include recommendations to avoid long-acting opioids for first-line use and to consider the addition of the overdose-reversal agent naloxone where appropriate. In essence, the PBM should be prompting claims personnel to engage clinical resources that can prevent a problem from taking root and also should have in place tools that can be deployed if signs of opioid-use disorder do emerge.
Guidelines are critical because they are rooted in science and empirical evidence. As solid as these are, we cannot depend on guidelines alone. We also must seek additional clinical and social indicators that could help us better identify those most at risk for misuse, abuse, or the threat of overdose. One strong approach is employing a biopsychosocial model in which we consider the whole patient. Another important measure is identifying opportunities for partnerships in the addiction-recovery process. This means building relationships among prescribers, injured workers, clinicians, employers and other caregivers. This web of interactions must foster trust and hold all parties to account for their respective role in recovery.
Another way to support program outcomes and patient safety is through the triage of appropriate cases for further clinician engagement or additional oversight through case management. This extra scrutiny can pay dividends when the case manager is specially trained to focus on claims deemed at-risk based on pharmacy utilization. The use of a specially trained pharmacy nurse case manager can promote patient engagement, safety and education. With the appropriate data resources—made available through the PBM and medical bill review—the pharmacy nurses can target the cases in which they can make the greatest impact. The nurses can work with the prescriber, injured worker and claims personnel to confirm pharmacy utilization is medically appropriate and supports a timely recovery.
There are other linkages and partnerships that can help prescribers maintain patient safety and even forestall addiction. Both a Pharmacy Benefit Manager (PBM) and case management partner can prove strong allies. A robust PBM program can mitigate some of the risks associated with opioid use and help identify patients who might require direct clinical intervention and support. For example, risk-modeling tools can mine data for emerging patient risk around several of the indicators for opioid misuse, abuse, or overdose.
Prescribers also can establish a pain agreement or an informed-consent agreement to ensure all sides understand the risks, commitments, proposed course of treatment and the consequences of a breach. Additional risk-screening tools such as SOAPP-R, ORT and DIRE have proven useful as have PADT, COMM and ABC, which help flag opioid misuse. Simple steps such as providing baseline and random urine drug testing and practicing safe storage and disposal of the drugs can further deter abuse.
18
PUBLIC RISK | MAY/JUNE 2018
Prescribers can review state databases for prescription drug monitoring; these often are referred to as PDMPs or PMPs. Signs of errant utilization can prompt discussions around treatment options for opioid-use disorder. Prescribers also can help educate patients about pain and the risk of opioid-use disorder and, when warranted, recommend non-opioid analgesic medications or non-pharmacologic therapies. There are other steps prescribers can take. They can taper injured workers off opioids where appropriate, such as when a patient develops increased dependence on the drugs or demonstrates aberrant drug-taking behavior. In cases in which injured workers show signs of opioid-use disorder, prescribers can consider medicationassisted therapy with drugs such as methadone or buprenorphine. These types of drugs, combined with counseling and support from family and friends, can offer another viable option for combating opioid-use disorder, according to the Substance Abuse and Mental Health Services Administration (SAMHSA), the primary federal agency responsible for substance abuse and mental health services. SAMHSA recommends employers make clear that help is available for workers struggling with opioid-use disorders in part because employees who seek treatment of their own accord—rather than solely at the behest of family and friends—are more likely to find success. There is no single fix that will eliminate opioiduse disorder within workers’ compensation or within society in general. Arresting this deadly epidemic will instead require an assemblage of committed partners that includes injured workers, families, employers, PBMs, prescribers, clinicians and other caregivers such as specially trained nurse case managers. These groups can employ a range of measures that, taken together, offer the best hope for reducing the scourge of opioid-use disorder and decreasing adverse outcomes associated with opioid use, including death from overdose. These tools include patient education, evidence-based guidelines, biopsychosocial models that consider the full range of patients’ needs, medication-assisted therapy and countermeasures such as naloxone. Nikki Wilson is the director of pharmacy product development for Coventry’s Pharmacy Benefit Management solution, First Script.
72 happy children playing during recess. 24 busloads of students dropped off. 7 drinks spilled at lunchtime. 1 energy-packed elementary school day.
BETTER UNDERSTOOD BETTER PROTECTED™ Tailored coverage as unique as your business. As the #1 preferred business insurer,* we listen carefully to your unique needs and tailor coverage and services to fit them. To learn more, talk to your broker or visit libertymutualgroup.com/businessprotected.
Commercial Auto
I
General Liability
I
Property
I
Workers Compensation
*Based on 2018 survey of business insurance buyers on preference of national carriers sold via independent agents. Š 2018 Liberty Mutual Insurance. Insurance underwritten by Liberty Mutual Insurance Co., Boston, MA, or its affiliates or subsidiaries.
FOR AN AGING WORKFORCE (and Millennials too!) BY KEVIN LOMBARDO
20
PUBLIC RISK | MAY/JUNE 2018
A
LL FACETS OF THE AMERICAN WORKFORCE ARE CURRENTLY IN THE MIDST OF A MAJOR CHANGE. Despite the growing presence of the millennial generation in the working population, workers, generally speaking, are getting older. The trend applies equally, perhaps in even greater measure, to the public sector workforce—government employees constitute a force 2 million strong, of which over a quarter are over 55 years old. The trend doesn’t appear to be slowing down, and a report by the U.S. Bureau of Labor Statistics predicts that by 2020, all workers over 55 will constitute the largest share of the workforce among all age groups, regardless of industry (See Table I). TABLE 1: LABOR FORCE PARTICIPATION (ACTUAL AND PROJECTED) BY AGE GROUP COHORT
1994
2004
83.4%
82.8%
16 TO 24
66.4%
55 TO 64
56.8%
62.3%
5.4%
6.1%
25 TO 54 65 TO 74
75 AND OLDER TOTAL
Source: Bureau of Labor Statistics
17.2%
66.6%
There are a number of reasons for this shift. Birth rates have reached a historic low, at only 62.0 births per 1,000 women aged between 18 and 44. Moreover, people are simply living longer—the Centers for Disease Control and Prevention reports that people can expect to live nearly 20 years past the traditional retirement age of 65—and as a result, they’re working later in their lives. Likewise, the minimum eligibility age for social security has continued to rise, and a challenging economy has forced workers to remain on the job longer than ever before. Though tenured workers bring a host of unique talents and advantages to their jobs, they also face common workplace obstacles at higher rates. First and most pressing among these challenges is chronic pain. It’s the single largest factor when it comes to employer costs for the health and wellness of workers, racking up over $635 billion in direct costs per year in the United States, according to economists writing in The Journal of Pain in 2012. It’s a pervasive problem, too—four in 10 Americans report that ongoing pain diminishes their ability to work and perform other everyday tasks, and the figures are even more daunting among older workers. This translates into more than 100 million people living and working with chronic pain every day (pain lasting more than 12 weeks). More specific injuries also affect older Americans at higher rates; for instance, musculoskeletal disorders (MSDs) are highly prevalent among older workers, with the 45–54
61.1%
2014
55.0% 80.9%
2024
49.7%
81.2%
64.1%
66.4%
8.0%
10.6%
21.9%
26.2%
66.0%
62.9%
29.9%
60.9%
cohort sitting at the top of the charts. The question for employers, then, is self-evident: How can we make sure that our workers continue to thrive on the job as they age?
THE IMPORTANCE OF PRODUCTIVE AGING
Aging obviously affects all workforces, regardless of industry, but workers from cities, counties, state and federal agencies are growing older at an even sharper rate than those in the private sector. There’s a major shift coming, as these workers stay on the job well past retirement age. With the baby boomer generation occupying a large portion of the workforce, it’s now more important than ever that agencies adopt productive aging strategies to ensure that their workers are not only productive, but safe and healthy. In principle, the term “productive aging” refers to a strategy that concentrates on taking advantage of the unique skills and talents of older, more experienced workers. In discussing these traits, it can be difficult to avoid the traps of ageism—stereotypes often reinforce common notions about older people, so it’s important to interrogate those ideas with actual observation and analysis. Still, some general traits of older workers seem to resonate across industries. They possess broad experience, and many employers report that they’re attentive and diligent on the job. Chronic pain remains a prevailing issue, but the Centers for Disease
MAY/JUNE 2018 | PUBLIC RISK
21
CHRONIC PAIN FOR AN AGING WORKFORCE (AND MILLENNIALS TOO!)
Control and Prevention reported in 2009 that older workers deal with acute injuries less frequently than their younger colleagues—though their injuries do tend to be more serious, last longer, and cost more. With those factors in mind, it’s easy to see why employers like cities, states, counties and other are looking to preserve and support their tenured workers. Total health programs have become more and more commonplace around the country, with organizations adopting proactive, holistic approaches that incentivize healthy living. Exercise is a priority for all workers, and healthy eating is essential. Still, there are more layers to the issue than simply encouraging people to live healthy lifestyles. Progress often begins at the management level, and supervisors need to be prepared to work with multigenerational teams. Utilizing the age spread can actually benefit administrators, as younger people tend to be more familiar with technology, and older people bring their own array of advantages to the table. Both groups have their limitations, and older workers should be placed in positions that best support their success on the job. Finding the right balance for tenured workers can be a challenge, but it’s one that can be mitigated by a holistic approach that serves all facets of the worker’s experience.
A HOLISTIC APPROACH: BODY, BEHAVIOR, AND ENVIRONMENT
It’s an unfortunate fact that many modern employers aren’t always on the cutting edge of wellness, due in large part to a narrow view that doesn’t account for the totality of the worker’s experience. Older workers, especially those who face chronic pain on a regular basis, have a specific set of needs when it comes to staying safe and healthy in the workplace. It starts with addressing the specific concerns of physical health for older workers, who deal with injuries to the knees, back, and shoulders at high rates and often struggle with ongoing pain in the aftermath. But prescient managers and administrators are learning to see the bigger picture. In many cases, some workers have been performing their jobs for a long time. With that valuable experience also comes the risk of bad habits and poor technique, whose effects are exacerbated by job repetition. Moreover, older workers engage with their surroundings differently from their younger counterparts, and face unique risks in work environments that may have changed around them over time.
22
PUBLIC RISK | MAY/JUNE 2018
In some respects, treating the physical symptoms and causes of chronic pain in people is the simplest part of this three-pronged safety strategy. Still, it cannot succeed without directly engaging workers in real time. Many organizations have seen success in adding onsite treatment and therapy options for their workers, which provide an opportunity to assess the particular physical needs of a workforce and alleviate the symptoms of pain, injury, and stress immediately. Addressing a worker’s behavior can be more challenging. Older workers often do their work the way that they always have—the motions and tasks and exertion has been reinforced over time, and changing those patterns can be difficult. Again, direct engagement is the key. Workers, especially those tenured ones, should feel respected and heard in their workplace, and there’s no better source of data than direct feedback. Observing employees with a keen eye through on-site monitoring can also provide a wealth of information that can help agencies and organizations understand the sources of risk that lead to costly chronic pain and injuries. Analyzing that data can help to isolate problem areas, correct bad mechanics in real time, and provide critical new training that can help workers avoid getting hurt on the job. Utilizing tools such as technique training, on-site coaching, and self-care programs can help encourage sustainable behaviors that reduce the risk of chronic pain and injury. Public entity workers are in a particularly vulnerable position when it comes to the work environment, which in many cases is vastly different from the private sector and comes with its own risks. Whether they’re out in the field, seated at desks, or traveling the roads, tenured workers respond differently to their environment than do younger employees. Again, observation focused on ergonomics is key. Detailed analysis of the workplace and the tools required to do the job can provide insight into the risks older workers face every day. For instance, the oft-discussed sitting epidemic, usually a by-product of the work environment, carries potentially severe health consequences from obesity and heart disease to mental issues and poor respiration. That’s a problem that can be corrected at the source by providing workers with the tools and freedom they need to stay mobile during a shift. Even more significant has been the increased focus on workplace ergonomics—Johnson & Johnson recently reported saving $250 million
on health care costs after investing in ergonomic solutions to the work environment.
WORKING SMART IN THE LATER YEARS
Ultimately, the progressive aging of the American workforce is likely to spur a major sea change in how public entities, agencies and companies approach workplace safety. With the long-awaited wave of retirement having failed to coalesce into reality, there is simply too much valuable experience and talent to be lost from tenured workers. So managers and administrators face a choice: be proactive, or play catch-up. A three-pronged approach of body, behavior and environment to treating chronic pain and preventing injuries is essential, but no more so than direct communication and a concerted effort to understand how these individuals do their jobs. Treating this group of workers with flexibility and empathy will lead to major returns down the road. Such an effort can’t start and stop at the managerial level—it requires fostering an overall culture of good health. Between enhancing training on at the job location, managing the hazards of the work environment, and providing sensitive treatment and therapy options, there’s an opportunity to capitalize on shifting age demographics. Older workers bring ability, experience, and perspective to the workplace, and should be supported till the last day of work—there’s simply too much to lose.
WHO’S NEXT?
Although this article has focused on the aging or tenured workforce, we can’t forget about the next generation and future leaders of business, government, and the country—millennials. Although they have youth on their side, they carry a ticking time bomb for employers in the form of pre-existing conditions that may increase their likelihood of suffering MSDs. Millennials have spent more time on smartphones and mobile devices, not to mention laptops and other computers, where the typical slouching posture can have harmful effects before they even enter the workforce. The same theories and initiatives that are engaged to affect tenured employees can be utilized to minimize risk with younger workers who will arrive on the job with their own set of risk factors. Kevin Lombardo is the president and CEO of Dorn Companies.
Protecting communities for 30 years
Let’s develop risk solutions that keep our communities safe. #CommunityMR www.munichreamerica.com/alternativemarket Products and services provided by Munich Reinsurance America, Inc.
NOT IF, BUT HOW
Protecting PUBLIC ENTITIES in PUBLIC
PRIVATE PARTNERSHIPS BY AMANDA FRANKLIN, J.D.
24
PUBLIC RISK | MAY/JUNE 2018
I
N AN ERA OF AGING INFRASTRUCTURE AND SMALLER GOVERNMENT BUDGETS, public private partnerships (P3s) have become a popular vehicle for accomplishing projects that might not otherwise occur. Think buildings, toll roads, prisons, and university housing developments. P3s are also very common in the public housing arena and extend to such spheres as hotels, parks, and charter schools. Private partners usually possess some sort of specialized skill or experience that the public entity does not have or, more often, have the financial means to accomplish the project that the public entity lacks. In return for this fiscal capital, the private party usually has an opportunity to benefit economically from the P3 in the form of tax credits or other subsidies. Consequently, many public entities view P3s as a cost-saving measure. The National Council for Public Private Partnerships expands upon the P3 relationship by stating that, “in addition to the sharing of resources, each party shares in the risks and rewards potential in the delivery of the service or facility.” (https://www.ncppp.org/ppp-basics/7-keys/) While the public entity can reap many rewards from engaging in a P3, it is important for the public entity partner to allocate the risks involved in achieving those rewards in a manner that best protects its interests.
GET INVOLVED!
It is crucial that public risk managers be involved in the P3 process as early as possible, preferably from the time the entity first starts considering such an arrangement. There is often a push in P3s to get the deal done up front and worry about the details later, which can be a recipe for risk management disaster. Ideally, if you are engaged from the time the project is just starting to be discussed, you can address concerns, including those discussed below, in the planning stages, before such concerns become reality. Further, it is essential that the risk manager be involved in the review, if not the drafting, of the public private partnership contracts. If your entity already has a policy that all new contracts and projects have to have risk management sign off, make sure it’s clear that P3s are no exception. And if you don’t already have such a policy, a P3 is a great place to start implementing one because of the complexities inherent in the arrangement. Finally, work to identify, control and manage risks of the P3 project in the same way as you
do for your public entity every day. Public risk managers have the important quality of being able to see the big picture and spot exposures and challenges that others might miss as well as vast experience implementing programs that help reduce overall risk, all of which can be invaluable in a public private partnership.
WILL IMMUNITY PROTECTIONS APPLY?
Many state laws provide public entities with protections such as the types of causes of action for which an entity can be sued; the requirement that the entity have actual or constructive notice of a defect in order to be held liable for it; and limitations on how much the public entity can be required to pay in damages. These are important safeguards for public dollars, but they may not apply to public private partnerships. In most states, public ownership is required in order for an entity to have governmental immunity protection; merely having a public entity partner involved may not suffice. Further complicating this consideration is the fact that in many instances a public entity is required to form a separate legal entity (usually a nonprofit) in order to participate in a P3. As a result, even though the new entity may have the same board members as the public entity, do similar work to the public entity, and serve the same people as the public entity, it is ultimately a separate private entity and may not be entitled to immunity protection. That means that two seemingly identical operations, one owned and run purely by a public entity and one which
MAY/JUNE 2018 | PUBLIC RISK
25
PROTECTING PUBLIC ENTITIES IN PUBLIC PRIVATE PARTNERSHIPS
is a P3 owned by a private entity, may differ drastically in terms of their potential liability exposure if one has governmental immunity protection and one does not. In most states the laws and courts have not kept pace with the business of public private partnerships, so this is an important consideration to discuss with your entity’s legal counsel as early on in the process of considering or implementing a P3 as possible. Your legal counsel may be able to structure the partnership so that the public entity maintains ownership of the property and therefore retains immunity protections or otherwise find ways to transfer risk within the P3 relationship.
CALCULATE COSTS
Although usually marketed as a cost-saving mechanism, P3s can often have hidden long-term costs. Privately owned entities can be much harder and more expensive to insure than public entities because they do not have the same governmental immunity protections. Further, under most state laws, privately owned entities cannot be members of public entity risk or insurance pools and must purchase coverage individually or as part of a much smaller group without immunity protection, again leading to higher insurance rates. Finally, the lack of immunity protection and tort caps means that private entities may have larger judgments and claims against them than a public entity doing the same work would have, which will in turn increase the private entity’s loss ratios and potentially increase their cost of insurance even more. This long term-cost of insurance and claims may mean that a P3 that initially appeared to offer financial benefits may end up costing more in the long run.
CONTRACT CONSIDERATIONS
Usually when a public entity enters into a contract, it is the owner of the project or the purchaser of the goods, so it has the upper hand in negotiating contractual provisions in its favor. In P3s, however, the private partner is often viewed as having the more favorable bargaining position due to the financial capital it brings and because it may have more experience in the process of entering into and developing public private partnerships than the public entity. It is important to remember that the contracts (and there may be many of them!) which create a P3 are just like any other contract that a public entity enters into from an insurance and risk management perspective, so many of the provisions
26
PUBLIC RISK | MAY/JUNE 2018
will be the same. This means that at a minimum you are going to require that the other parties have applicable insurance coverage, that they provide you with a waiver of subrogation and additional insured status for both ongoing and completed operations for that coverage, that their coverage is primary with regards to their work, and that they indemnify you for claims arising out of their operations. When developing particular contractual insurance requirements, consider the type of project and the inherent risks involved. If there is construction involved in the project, you may need to require builder’s risk insurance and professional liability coverage for the architects and design professionals. In that case, you’ll need to determine who will provide the insurance and what limits should be required. Further, who will be responsible for insuring the project when it is complete, both from a liability perspective and on their property schedule? If the project involves ongoing operations after construction is completed, you may need to have different requirements for the operations phase than the construction phase, which may be contained in a separate agreement. Depending on the relationship and the nature of the work, you may need to require pollution coverage, cyber liability insurance, an umbrella policy, or other specialty coverages. Work with your legal counsel to address all potential exposures.
EMPLOYEE ALLOCATION
Public private partnerships can also present complicated arrangements regarding the personnel who will be working on them. Are they public employees, private employees, shared employees, or some combination thereof? Who is responsible for directing the employees’ actions, and ultimately for accepting responsibility for them? Whose policies will be followed? Who is responsible for their workers’ compensation? Make sure the P3 contracts spell all of this out— especially if there are multiple entities involved.
OPERATIONS AND INDEMNIFICATION
Because of the “partnership” nature of public private partnerships, it can be difficult to delineate which party is responsible for which activities. Often times the private partner will manage one phase of operations while the public partner manages another aspect, or the
parties may carry out distinct operations in different parts of the same facility. Further, it can be confusing whether responsibility for maintenance and repairs and for inspecting for the need for them belongs to the owner of the building or the party in charge of operations. Work with your legal counsel to clarify exactly what each party is responsible for doing and to ensure that insurance and indemnification requirements correspond to these obligations. As with any contract, it is best if the party that is in the best position to control the risk from a factual standpoint is also the party that is responsible for the risk from a legal standpoint. This means that the private party should indemnify your public entity for claims arising out of its operations and should be required to carry insurance to reinforce that indemnification requirement. Be very cautious in this area as private parties will often attempt to compel the public entity to indemnify the private party for the private party’s negligence. In addition to being against the law in many states, this can lead to lax safety and risk management practices and expose the public entity to liability it did not create.
SAFETY MATTERS
As with your public entity, safety and risk management are crucial to the success of a public private partnership. It’s important to focus on the reduction of risk throughout the partnership, as well as in the language of the partnership contracts. This includes robust safety and risk management programs throughout the life of the project and continued involvement by all parties to the partnership. The public entity can draw on its skill and experience in this area and implement many of the same risk management practices utilized in its public operations as part of the P3. Reducing risk for all partners will ultimately reduce the risk and cost to the public entity, including the reputational risk involved. Public private partnerships can be a great option for public entities to accomplish projects for the benefit of their citizens, but they are not without risks. Effective, proactive risk management from initial contract drafting through strong safety programs during the term of the partnership can go a long way toward reducing these risks and protecting the public entity. Amanda Franklin, JD, is an area assistant vice president with Arthur J. Gallagher.
ADVERTISER INDEX
ADVERTISER INDEX
Genesis Management and Insurance Services Corporation. . . . . . . . . . . . . . . . . . . . . . . Back Cover Liberty Mutual Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 19 Munich Reinsurance America. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 23 Old Republic Insurance Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inside Front Cover OneBeacon Government Risks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 11 Rimkus Consulting Group, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2 States Self-Insurers Risk Retention Group, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inside Back Cover Tokio Marine/HCC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 10 Travelers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 15 HAS YOUR ENTITY LAUNCHED A SUCCESSFUL PROGRAM? An innovative solution 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 Jennifer Ackerman at jackerman@primacentral.org or 703.253.1267.
CALENDAR OF EVENTS PRIMA’s calendar of events is current at time of publication. For the most up-todate schedule, visit www.primacentral.org.
PRIMA ANNUAL CONFERENCES June 3–6, 2018 PRIMA 2018 Annual Conference Indianapolis, IN Indiana Convention Center June 9–12, 2019 PRIMA 2019 Annual Conference Orlando, FL Gaylord Palms
REGISTRATION OPENS IN JUNE!
June 14–17, 2020 PRIMA 2020 Annual Conference Nashville, TN Gaylord Opryland June 13–16, 2021 PRIMA 2021 Annual Conference Milwaukee, WI Wisconsin Center
PRIMA INSTITUTE November 5–9, 2018 West Palm Beach. FL
BIG
IDEAS.
ISO 31000 TRAINING November 14–15, 2018 Alexandria, VA The Alexandrian Hotel
SMALL SETTING.
November 5–9, 2018 • West Palm Beach, Florida
MAY/JUNE 2018 | PUBLIC RISK
27
READY TO
YOUR PROGRAM?
JOIN JOINUSUSINININDIANAPOLIS INDIANAPOLISJUNE JUNE3-6 3–6FOR FORTHE THE2018 2018 PRIMA PRIMA ANNUAL ANNUAL CONFERENCE! CONFERENCE! BY JENNIFER ACKERMAN
W
HEN MORE THAN 1,000 RISK MANAGEMENT PROFESSIONALS GET TOGETHER, you can bet there will be tons of learning, networking and laughter. PRIMA’s Annual Conference promises all of that and more. Kicking off on Sunday, June 3, PRIMA’s 2018 conference features more than 50 educational sessions on topics relevant to anyone who manages risk in the public sector, including PTSD, cybersecurity, loss control, enterprise risk management and more. Whether you’re looking for a 30-minute “cram” session or a longer, deep dive learning opportunity, the PRIMA Annual Conference has it all.
2018 ANNUAL CONFERENCE SPONSORS THANK YOU TO OUR GENEROUS SPONSORS FOR THEIR CONTINUED SUPPORT OF PUBLIC RISK MANAGERS.
PLATINUM
GOLD
EYE-OPENING GENERAL SESSIONS
Each day in Indy will start with an inspiring and thought-provoking keynote speaker. On Monday, LaFern Batie will discuss transformational leadership. Batie knows that in an environment that is often challenging and changing rapidly, it can be difficult to remain energized and enthusiastic. She will challenge you to think differently about your role as a leader.
SILVER
On Tuesday, Commander David Sears, a former Navy SEAL, will show attendees how to create a process around decision-making that leads to faster, better decisions. His high-energy presentation will look into how the audience can apply the best of the Navy SEALs to their own organizations. ®
Wednesday, popular speaker Gordon Graham will explain how the seven rules apply of Admiral Hyman Rickover apply to every high-risk occupation and provide proven strategies and tactics to help you implement these “rules” into your organization.
IT’S ALL FUN AND GAMES
While learning is why everyone comes to PRIMA’s conference, there’s still plenty of time to socialize and network. On Tuesday, June 5, PRIMA will hold its signature social event at Punch Bowl Social (PBS). Never heard of it? PBS is a grown-up entertainment venue with old-school video games, pool, private karaoke rooms, bowling and more. Plan to join to your risk management peers as we blow off some steam and engage in a little friendly competition! As always, PRIMA’s conference will offer engaging topics from industry experts. It’s the can’t-miss event for public entity risk practitioners.
28
PUBLIC RISK | MAY/JUNE 2018
BRONZE
PATRON STATES SELF-INSURERS RISK RETENTION GROUP THE INSTITUTES RISK AND INSURANCE
RESEARCH
AND FOUND THAT THE COMBINATION OF
STATES
COVERAGE, SERVICES, SUPPORT AND NETWORKING CAPABILITIES ARE
UNPARALLELED.
THE UNDERWRITING & CLAIMS
EXPERTISE, AND SPECIFICALLY DESIGNED COVERAGES, MAKE
STATES AN EASY DECISION FOR US.” JACKIE CLEWIS risk manager, arm city of roanoke, virginia states member-owner over 28 years
MEMBER-OWNER
“WE DID THE
STATES OFFERS YOU: • A BROADLY INTERPRETED EXCESS LIABILITY COVERAGE FORM THAT IS SECOND TO NONE IN THE INDUSTRY. • PREMIUM STABILITY AND SOUND FINANCIAL RESULTS FOR OUR PARTNER MEMBERS – MEMBER PREMIUMS ARE INVESTMENTS IN THEIR OWN COMPANY. • EXCELLENT CLAIMS AND LOSS CONTROL SUPPORT, INCLUDING ON-SITE.
Visit us at PRIMA in Booth 327
• SPECIALIZED PUBLIC ENTITY-ORIENTED SERVICES FROM EXPERIENCED, SERVICE-DRIVEN PROFESSIONALS.
FOR INFORMATION CONTACT: STATES SELF-INSURERS RISK RETENTION GROUP, INC. AT 1-800-640-0345, EXTENSION 3310, OR VISIT OUR WEBSITE AT WWW.STATESRRG.COM
WE’VE BEEN LISTENING.
You’ve relied upon our financial security and underwriting skills for a long time.
Visit our website at www.GenesisInsurance.com
And along the way, you’ve challenged us to do more. Well, we’ve been listening, and we’re proud to announce a new, more “can do” approach to your business. We’re actively seeking expanded opportunities. So whether you’re seeking broader coverage, new jurisdictions, or aggregate deductibles, we hear your call and share your mission. Let’s talk. We’re listening!
Genesis Insurance Company is licensed in the District of Columbia, Puerto Rico and all states. Genesis Insurance Company has its principal business in Stamford, CT and operates under NAIC Number 0031-38962
A.M. Best A++ XV
S&P AA+
A Berkshire Hathaway Company