Public Risk November/December 2020 Issue

PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION NOVEMBER/DECEMBER 2020

Quality-Assure Your IMEs for the Benefit of Your Workers’ Compensation Program

ALSO IN THIS ISSUE

OUTSIDE EMPLOYMENT: AVOIDING MOONLIGHTING MAYHEM

PAGE 11

DON’T CELEBRATE THESE FIVE HOLIDAY HAZARDS PAGE 16

IS YOUR ENTITY READY FOR COVID-19?

Count on PRIMA for ongoing COVID-19 education, including return-to-work planning, for the public risk management community.

COVID-19 education includes webinars, podcasts, blogs, and more!

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NOV/DEC 2020

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Volume 36, No. 6

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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 Sheri D. Swain Director, Enterprise Risk Management Maricopa County Community College Tempe, AZ PAST PRESIDENT Scott J. Kramer, MBA, ARM County Administrator Autauga County Commission Prattville, AL PRESIDENT-ELECT Melissa R. Steger, MBA, CRM Asst. Dir., WCI & Unemployment Ins. University of Texas System Austin, TX

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Quality-Assure Your IMEs for the Benefit of Your Workers’ Compensation Program

By Donna Bradshaw

DIRECTORS Forestine W. Carroll Manager of Risk Management Memphis Housing Authority Memphis, TN Lori J. Gray Asst. Director of Finance for Risk and Wellness Services County of Prince William Woodbridge, VA JamiAnn N. Hannah, RMPE Risk Manager City of Gallatin Gallatin, TN Laurie T. Kemper Sr. Risk Management Consultant City/County Insurance Services Salem, OR Adam Maxwell Director of Admin Services City of Westerville Westerville, OH Michael S. Payne, ARM, HEM Risk Manager City of Reno Reno, NV NON-VOTING DIRECTOR Jennifer Ackerman, CAE Chief Executive Officer Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Chief Executive Officer 703.253.1267 • jackerman@primacentral.org

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Outside Employment: Avoiding Moonlighting Mayhem

By Joe Jarret

IN EVERY ISSUE

ADVERTISING Jennifer Ackerman, CAE Chief Executive Officer 703.253.1267 • jackerman@primacentral.org

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Don’t Celebrate These Five Holiday Hazards

By Joann Robertson, CSP CPSU ASRM CPSI

4 NEWS BRIEFS | 15 BEST OF THE BLOG | 19 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.

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Copyright 2020 Public Risk Management Association

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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Register for PRIMA’s DECEMBER WEBINAR FREE TO MEMBERS

Occupational Physicals and Employee Wellness: Redirecting Costs DECEMBER 16 | 12:00 – 1:30 PM EST SPEAKERS: Janelle Downes, MPA, SPHR, SHRM-SCP, Director, Fauquier County (VA) Human Resources Darren Stevens, Fire Chief, Fauquier County (VA) Department of Fire & Rescue Levi Rizk, Medical Director, Fauquier County (VA) Employee Wellness Center DESCRIPTION: Attendees will learn how investing in employee wellness and occupational physicals have a lasting impact on organizational outcomes. By offering a robust employee wellness and occupational physical program, you can detect health conditions early that save lives and reduce the overall cost of treating medical conditions that would have otherwise gone undetected until the disease has further progressed. If your employees feel like they are being invested in, they will see their workplace as a positive and engaging place to work, which affects overall health, productivity, employee retention and reduction of healthcare costs.

ATTENDEE TAKEAWAYS: 1. Occupational health is more than just a check mark to perform a job 2. Relationships and building trust influences the dynamics of organizational well-being 3. Investing in the upfront cost of physicals reduces long term serious health condition costs in future

Register at primacentral.org/education/webinars

MESSAGE FROM PRIMA PRESIDENT SHERI D. SWAIN

would like to begin by commending each of you for your resiliency in continuing to ride out this storm we call 2020. I know it is easy to dwell on all of the horrible things that are going on in the world today, but you also need to take the time to shake out the “nuggets” of good, hope, positivity and civility. One thing we do know: our worlds have been turned upside down and everything we knew as normal has changed.

Of course, not all changes are bad ones though. For many of you, this may be the worst year you have ever had but that doesn’t mean that you can’t also feel blessed that you found “nuggets” along the way.

As we enter into the holiday season, it is important to hold on to the nuggets. This is the time of year to be thankful, and to spend quality time with family, friends and co-workers both near and far. Remember, the upcoming holiday season is normally a very stressful time of year, even in a “normal” year. It is more important than ever to ensure we take every opportunity to celebrate our successes, resiliency and boost morale. While everyone may be doing well working from home, nothing will ever take the place of working in person with your team.

With the remote work environment, be creative and think about how you can celebrate through video conferencing or other alternatives. It is so important to keep morale up and promote positivity.

Letting others know we can all work together and that we genuinely care about each other can go a long way to helping someone feel, Hey, I got this!

“

While you look back on 2020, take the time

to reflect on all you were able to accomplish in your home life and your career. Think about all the nuggets you shook out along the way, and mostly how you survived, and came out the other side a better person and ready to take on 2021… As I said earlier, not all change is bad. I believe that. I truly hope as we move into 2021, we will witness good, hope, positivity

“

I

Pat on the Back

and most of all civility.

While you look back on 2020, take the time to reflect on all you were able to accomplish in your home life and your career. Think about all the nuggets you shook out along the way, and mostly how you survived, and came out the other side a better person and ready to take on 2021.

As I said earlier, not all change is bad. I believe that. I truly hope as we move into 2021, we will witness good, hope, positivity and most of all civility.

Sincerely,

Sheri D. Swain PRIMA President 2020–2021 Director, Enterprise Risk Management Maricopa County Community College Tempe, AZ

I wish you and yours, the happiest of holidays.

I can’t wait to see you in person, next year!

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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NEWS BRIEFS

NEWS Briefs

FLORIDA HOPES TO OFFER SMARTPHONE DRIVER’S LICENSE BY 2021 Want to keep your driver’s license handy without lugging around a purse or wallet? As soon as next year, there could be an app for that.

Just as house and car keys, bank cards, plane tickets and proof of car insurance have evolved from physical objects to digital apps, a pilot program through the Florida Department of Highway Safety and Motor Vehicles will soon determine whether the time has come to store your state-issued driver’s license on your smartphone.

Let’s say you’re 21 and have to show ID before you walk into a bar… With this technology, you can pull out your phone, select what kind of verification you need and show it to the man at the door without your phone ever leaving your hand.

Hillsborough County Tax Collector Doug Belden

It’s a concept that has gained traction with pilot programs in other states as a way to curb identity theft, card skimmers and even the spread of coronavirus. Louisiana started offering a limited version in 2018, but Florida could be the first in the nation to offer motorists a digital, hands-free driver’s license option for all uses.

The state will launch a pilot program in December. “As ID fraud becomes more frequent and sophisticated, we made it a priority to reinforce ID verification by adding extra software security technologies," said Tony Lo Brutto, a vice president at cybersecurity firm Thales, selected to launch driver’s license app and associated verification program.

If all goes well, motorists can choose to apply for both a physical driver’s license and an electronic copy that can be downloaded as an app to a smartphone or tablet. The program has already been approved by the American Association of Motor Vehicle Administrators, the nation’s umbrella agency for motor vehicle departments, and it meets all personal identification requirements of the International Organization for Standardization, Thales said.

That means the mobile app could be used as identification domestically and overseas.

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PUBLIC RISK | NOVEMBER /DECEMBER 2020

It will carry the same information as the traditional cards, including driving privileges and restrictions. But with the information now cloud-based, police officers, bartenders and others can more easily determine authenticity.

What’s more, users can be selective in how much personal information they turn over.

“Let’s say you’re 21 and have to show ID before you walk into a bar," said Hillsborough County Tax Collector Doug Belden. “With this technology, you can pull out your phone, select what kind of verification you need and show it to the man at the door without your phone ever leaving your hand."

You could limit the information you provide to your photo and age, If you just need to

prove you're old enough to get in, you can choose to only show your DMV photo, so he can determine you look like the person in the photo, and a screen that says whether you are 21-years-old or older. He doesn’t have to see your exact date of birth, where you live, your full name—all of that information is kept private.”

State offices like Belden’s already maintain massive databases of personal information, accessible by authorities, with every driver’s license issued, he said. The wallet-sized cards are simply a pared-down version. But there’s greater security in a digital version, with information kept behind the passcode, pin number or fingerprint-triggered security locks built into most phones and tablets.

THE FUTURE OF WORK POST-PANDEMIC: WE’RE NOT GOING BACK Washington Post columnist David Ignatius opined recently that “there’s no question that we’ll be living in a different world post-pandemic.” He writes that more than half of Americans “believe their lives will remain changed in major ways.”

Technology will allow people to work and live remotely, Ignatius writes, and they will continue the habits developed over the past seven months. He cites a survey by the consulting firm McKinsey & Co. that reports private sector companies pivoted to the new work arrangements 40 times faster than they expected possible. It estimates that companies jumped three to four years ahead into the future workplace in the space of a few weeks.

Shifts in How Government Work Gets Done In addition to changes in how work is done, the governmental shift in where work is done—using distance work arrangements much like the private sector—may well stick.

At the federal level, there was initial surprise in productivity increases in some agencies, as noted by telework expert Kate Lister in testimony before a Senate committee this past July. In fact, the vice chief of staff of the Air Force said recently: “it’s changed the paradigm on how we’re going to do work” and that he envisions one-third of its workforce remaining in a distance work arrangement after the pandemic subsidies.

Why do these shifts in how and where work is done matter? Alice Armitage, a law professor at UC Hastings in San Francisco was quoted as saying: “This pandemic will open everyone’s mind, and gets people to move out of their silos.”

Shifts in Where Work Gets Done It is this shift in mindsets over the past several months since COVID lockdowns were instituted that is highlighted in a new report by the IBM Center for The Business of Government: Distance Work Arrangements: The Workplace of the Future Is Now, which I edited, with contributions by Emily G. Craig, Michaela Drust, Sheri I. Fields, and Lawrence M. Tobin. This report comprises a series of

essays by IBM colleagues who observed and experienced the transition in the public and private sectors, and in their own lives, over a six-month period.

Initially, many thought the coronavirus would be an inconvenience to organizations for three or four months, and then everything would go back to “normal.” Well, it hasn’t and we are constructing a new normal.

Distance work arrangements, such as telework, remote work, and distributed teams, have been a growing trend in the workplace for more than a decade. But the adoption of these arrangements was slow, and industry observers predicted it would take years to transition. However, in mid-March, the coronavirus pandemic struck and much of the U.S. pivoted to a new workplace—home.

Suddenly, the conversation about distance work arrangements—in particular telework—has shifted from “do we have the right technologies in place?” to “do we have the right people policies and training in place?” And it isn’t just putting signed agreements onto paper, but changing how work is done, how teams work together, and how managers manage.

The rationale for telework quickly pivoted from being seen as family-friendly policy to a vital element for the continuity of operations in both public and private sector organizations.

Shifts in How We Manage Distance work arrangements involve different ways of working, as individuals, teams, and organizations. The most obvious is how we personally manage ourselves. There are lots of tips being offered and the benefits of increased personal autonomy and job satisfaction are well-reported, as are the challenges of maintaining work-life balance and staying connected are.

The larger challenges of preserving and creating interpersonal ties with colleagues and peers continues to be a new learning curve. Building these ties, along with developing trust and norms, is part of the new dynamics of working

in teams. Organizations and leaders have to find new ways to lead, to maintain productivity, and to create alignment around common goals.

As workplace guru Glenn Dirks says, “the more you go ‘virtual,’ the more the quality of management matters.”

Managers have to learn to manage a distributed team differently—informal taskings or in-person, non-verbal communication are no longer an option. At the same time, new forms of team communication, through chat boards on telework meetings, can add new insights. In any event, managers will increasingly have to trust their workers to do the right thing and to ensure their team has the support, information, training, and tools to do it.

There will always be jobs that can’t be done remotely, such as emergency response, or garbage pickup, or hospital care. But for a large segment of government work, distance work is an option and will likely be here to stay as leaders become more comfortable with managing these arrangements for both the employees and mission continuity.

Kinks That Need to be Worked Out Still, there are challenges to longer-term distance work arrangements that need to be resolved, including: • Ensuring adequate cybersecurity for both workers and data • The formation and maintenance of informal interpersonal relationships • Networking and trust building within teams and between individuals • The inculcation and maintenance of organizational culture • New ways to manage one’s self, teams, and career paths Like the private sector, governments will have to figure out the solutions to these challenges, but with a concerted effort—and maybe even a joint effort—it can be done. And as these challenges are addressed, a new normal will become the norm.

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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Quality-Assure Your IMEs for the Benefit of Your Workers’ Compensation Program

BY DONNA BRADSHAW

A

N INDEPENDENT MEDICAL EXAMINATION (IME) is a valuable tool in the workers’ compensation claims process. Public risk managers should be aware of the various situations in which their claims staff might benefit from an IME being ordered, as it can help them make decisions on complex cases. For example, claims professionals may want to:

• • • • •

Confirm a diagnosis.

Determine if a condition, pain or symptom is being caused by the work injury.

Verify whether a treatment is within best practice guidelines.

Apportion disability to a pre-existing injury or condition.

Ascertain if maximum medical improvement (MMI) has been reached, or if an impairment exists, determine the impairment rating (the factors in this bullet are dependent on the jurisdiction and nomenclature).

• Estimate how long it could take an injured employee to recover and return to work, and whether work restrictions are called for.

In these situations, an IME enables claims examiners to get an expert, objective medical opinion that can help them move a claim further to closure. However, if quality isn’t embedded into every step of the IME process—from exam request, physician selection, and resulting report—then there is a lot that could go wrong. For example, if the date of injury is incorrect on the IME, or the claimant is a woman but is referred to as “he” in the report, these types of errors can call into question the validity of the entire exam.

In addition, many jurisdictions have regulatory requirements. If those mandates are not adhered to, the IME could be disallowed. In this article, we break down key factors to ensuring a quality IME.

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USING A QUALITY IME VENDOR Partnering with the right IME company is the first step to quality. A workers’ compensation program should apply rigorous standards in selecting the right partner. Some criteria to consider include: • IME Physician Network. The most important part in obtaining a quality IME is utilizing a quality physician. The injured employee must be seen by a physician or specialist who is properly credentialed, qualified and skilled at performing the type of IME required. An IME company should have relationships with a broad pool of medical experts. It evaluates physicians to ensure they are skilled at performing IMEs, don’t have sanctions filed against them and have active treating practices. The IME company is familiar with physicians’ areas of specialty, board certifications and expertise in specific body parts. IME vendors also work with physicians to help them become more skilled in responding to IME requests within the highly regulated workers’ compensation system.

• Medical Director. An IME vendor should have a distinguished medical director who oversees the quality assurance (QA) program. This clinical executive ensures the IME process is focused on delivering medical opinions based on objective medical evidence. As such, the QA process should regularly audit

a random selection of IME reports to ensure physicians have met key quality standards. The medical director also ensures physicians within the IME network are properly trained on all workers’ compensation requirements, which differ from other lines of insurance.

• Accreditation. Through organizations such as URAC, an IME company can validate its use of best practices regarding data security, quality business processes, and HIPAA standards. For public entities looking to create a short list of IME vendors, URAC accreditation offers a stamp of approval that the IME company meets high quality standards.

• Compliance Department. This department should facilitate two functions. First, it should help the IME vendor stay abreast of new regulatory requirements and updates. Second, it must validate physician qualifications through the National Practitioner Data Bank (NPDB). This database will alert the department to physicians who have malpractice suits against them, who have been removed from health plans or who have lost privileges at facilities. This department performs a one-time check against the database, as well as a continuous query to ensure new issues have not come to light. If necessary, it will remove physicians who fail to meet quality standards from the IME network.

WHAT IS AN IME? An independent medical examination (IME) is performed by a physician who is an expert in a relevant field or specialty, but is not involved in the claimant’s treatment. IME physicians are objective evaluators and, therefore, do not have a stake in the outcome of the evaluation. Above all else, an IME must be impartial and based on medical evidence.

The IME process includes obtaining a medical history, performing a physical examination, and reviewing medical records and associated diagnostic studies.

An IME physician performs the exam to assess the claimant’s health, injury or disability. They have a dual obligation to the patient and the third party. For patients, although IME physicians do not play a role in treatment, they may recommend best-practice protocols. They may suspect undiagnosed illnesses and, when appropriate, suggest the patient seek care from a qualified physician. For the third party, IME physicians will respond to posed questions and provide a final IME report with their findings based on medical evidence.

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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QUALIT Y-ASSURE YOUR IMES FOR THE BENEFIT OF YOUR WORKERS’ COMPENSATION PROGRAM

A QUALITY IME REPORT

Once the physician has performed the physical examination, which is a key component of the IME, he or she will prepare a final IME report which will include: • A listing of medical records and diagnostic tests.

• History presented by the claimant.

• The findings from the physical examination.

• Answers to questions posed by the party requesting the IME. Depending on the jurisdiction, as part of the IME, the requesting party may also ask the physician to complete a functional ability assessment. It may also be called a physical capability form or physical ability

assessment, but it basically asks for the same type of information. The physician estimates how long an employee can perform certain functions, such as sitting, standing, or kneeling. Maybe the employee can sit for two-thirds of the day. Physicians would also provide a weight limit for certain tasks. For example, the employee can lift 20 pounds.

This assessment is helpful when considering return-to-work options.

A TWO-TIER QA PROCESS

Once the IME report is completed. It should be carefully vetted through a clinically focused process. This helps ensure a quality end result. In particular, two key aspects of the report—clinical and regulatory—must be

given careful consideration. To do this, each should be examined in separate steps of the QA process.

• Tier 1. In the first tier of the review, a specialist will examine the medical aspects of the report. When an IME is performed, medical records and diagnostic test results play a crucial role in a physician formulating a medical opinion. These items should be listed at the beginning of the IME report.

When IME physicians later point to records and test results in support of their opinions, they have been visibly catalogued at the onset. The first review will also assess the physician’s medical opinion to ensure it's clear and evidence-based.

If your organization is looking to initiate improvements, a good place to start is at the beginning of the IME process, refining the way in which your claims staff make IME requests. For instance, it’s imperative that the person requesting an IME provide a clear objective and specific questions that should be addressed in the final report. In addition, it’s important to provide all relevant background, including a complete set of medical records, diagnostic test results, job descriptions and claimant statements—all well in advance of the exam.

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The report is checked to ensure the IME physician has provided a description of the physical exam and any relevant findings. The description should include any specific assessments performed, such as Waddell’s Signs, and should note if the findings did not correlate to the claimant’s pain complaints. It’s important that the medical opinion is based on measurable evidence obtained in the physical exam or cited through a credible source, such as American Medical Association (AMA) guidelines or Occupational Disability Guidelines (ODG).

• Tier 2. The second step in the review should focus on examining the report for compliance with relevant state and federal laws. For this, the IME company must have in-depth knowledge of various jurisdiction requirements, such as when, why and how often IMEs can be requested. Each jurisdiction may use different evaluation guidelines, language and notifications. If state rules are not followed, an IME could be disallowed.

THE 7 C’S TO ENSURE A QUALITY IME REPORT

The medical opinion is solely that of the examining physician, but throughout this two-tier QA review the IME company helps ensure the final report embodies these seven C’s in terms of quality characteristics: ➊ Correct. The report should be checked to avoid typos, spelling errors, and grammatical mistakes. In addition, basic claim information should be verified, including the claimant’s name, claim number, and date of injury. ➋ Consistent. The same data should be used throughout the report. An injury cannot be a left-hip injury at the start and a right-hip injury later in the report. ➌ Complete. All questions posed by the requesting party should be answered. For this, a Q&A format is helpful—where a question is listed, then the answer is provided directly under it. In this way, answers are presented in a direct, straightforward

manner, rather than having to sort through paragraphs to find the answer. ➍ Clear. The report should provide a clear medical opinion that is easy for a layperson to read and grasp. ➎ Corroborated. All medical records and diagnostic tests that were provided are re-reviewed, ensuring clinical corroboration with opinions in the report. In addition, opinions should be corroborated with medical guidelines. ➏ Confined. The IME report should stay within the scope of a given case, limiting comments in relation to the work injury and resulting claim. In addition, the physician should limit their opinions to their medical specialty. For example, if the physician is an orthopedic surgeon, this person should not comment on endocrinological issues. ➐ Conciliatory. Statements should be made in a professional, even tone. From time to time, physicians might take offense to how treatment was handled. They might think it was negligent or unethical. Still, physicians should avoid inflammatory or insulting remarks, as this moves away from the objective tone that’s needed in an IME report. In the end, the report should be free of any subjective opinions.

the final report. In addition, it’s important to provide all relevant background, including a complete set of medical records, diagnostic test results, job descriptions and claimant statements—all well in advance of the exam.

Today, organizations also want greater transparency into their IME programs to make improvements. Toward that end, an IME vendor should provide a dashboard, so organizations can have a comprehensive view of IME statistics, including number of IMEs ordered, closed versus open referrals, the overall costs of IMEs, and efficiency in turnaround. These metrics contribute to an organization’s ability to better manage claims costs and outcomes.

With the dual power of quality standards and performance measures, your organization will be able to better understand where your workers’ comp dollars are going and have the ability to make better decisions at a program and claims level.

Donna Bradshaw is Vice President of IME Operations at Genex Services. With more than 25 years of experience, Donna has been responsible for writing operational plans to meet various state regulatory requirements, as well as securing and maintaining URAC Core V3 Accreditation. In her current position, she also develops and implements policies and procedures to increase IME quality, efficiency and effectiveness.

QUALITY CONTROLS IN YOUR HANDS

Public entities, risk managers, and claims handlers must be aware of the criteria leading to a quality IME result, and best practices should be made a priority. Otherwise, complex injury claims—that require an IME—may be at greater risk of becoming prolonged, complicated and costly, and injured employees may be in jeopardy of not receiving the care they need to recover and return to work.

If your organization is looking to initiate improvements, a good place to start is at the beginning of the IME process, refining the way in which your claims staff make IME requests.

For instance, it’s imperative that the person requesting an IME provide a clear objective and specific questions that should be addressed in

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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YOU COULD BE HERE

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I

BY JOE JARRET

N THIS UNPREDICTABLE ECONOMIC CLIMATE, MADE MORE SO BY THE ONSET OF COVID-19, many public sector employees are looking for additional sources of income in the form of outside employment. This practice is colloquially known as “moonlighting.” This is especially the case for people employed by local government entities facing budget shortfalls due to do a decrease in revenue.

Historically, public risk managers primarily worked with their law enforcement counterparts (due to the common practice of permitting law enforcement officers to provide security at special events, etc.), to craft moonlighting policies that protected both the individual officer and the agency. However, more and more public employees from other disciplines have taken to working a second or third job or starting a business “on the side.” While public employers prefer not to intrude needlessly on employees’ private lives, moonlighting has the potential to create serious risks and liabilities for employers, and challenges for the public risk manager.

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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OUTSIDE EMPLOYMENT: AVOIDING MOONLIGHTING MAYHEM

WHO MOONLIGHTS AND WHY I believe if you conducted a straw poll of those public entities populated with employees who moonlight, you’d find that the most common reason given for moonlighting is money, and the most common employee is a law enforcement officer. However, it would be unfair to presume that only law enforcement officers and people looking for additional income moonlight. I have had the privilege of serving as a public

to recuse themselves from certain public duties or responsibilities with obvious negative results.

Another ethical conflict of interest can arise if the moonlighting employee is using the public entity’s materials, equipment, and resources in pursuing and performing part-time work without the public employers permission. For instance, many businesses and private companies hire off-duty law enforcement officers as security personnel for special events because they are already trained

One of the more common risks associated with moonlighting concerns

potential conflicts of interest. Conflicts of interest most commonly arise

when the public employee’s outside, private activity, may conflict with the employee’s public position and duties. On occasion, a public employee’s moonlighting activities could involve her/him in outside employment,

business, or economic relationships that could potentially require them to recuse themselves from certain public duties or responsibilities with obvious negative results.

risk manager in two different states, and what I learned over the years is that moonlighters serve in a variety of disciplines. It is not unusual to find various professions represented, such as engineering, planning and zoning, human resources, code enforcement, finance, and parks & recreation. In terms of why people moonlight, I think you’ll find that some moonlighters are motivated by the opportunity to grow creatively.

Others are looking for ways to gain broader experience or to do something more interesting or challenging than their “day job.” Some are hoping to build a portfolio or a client base with an eye toward starting their own business or practices, while still others merely want to lend their expertise to a family member, friend, neighbor or worthy organization.

MOONLIGHTING RISKS

One of the more common risks associated with moonlighting concerns potential conflicts of interest. Conflicts of interest most commonly arise when the public employee’s outside, private activity, may conflict with the employee’s public position and duties. On occasion, a public employee’s moonlighting activities could involve her/him in outside employment, business, or economic relationships that could potentially require them

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and require little support. Some law enforcement departments allow officers to wear their uniform and use police-issued equipment such as defensive weapons, police radios, and even marked police cars when they moonlight on these off-duty jobs, while others, do not.

Because of the demands of their “second job,” some moonlighting employees may not have the energy to perform at their full capacity, which in turn may pose a safety hazard. There is always the risk of deterioration in the quality and amount of work a moonlighting employee is able to perform during the regular workday. The result may be fatigue, stress and a greater probability of mistakes. In addition, moonlighting may hinder an employee’s ability to work overtime. Then there is the employee who may be spending working time performing activities related to their moonlighting job. Finally, some states have passed legislation that, if a claim arises out of a moonlighting project, anything that implicates your entity’s involvement can result in imputed liability against your entity.

MOONLIGHTING POLICY

Looking at moonlighting from a wholly risk management perspective, the simple solution

to the potential liabilities of this practice would be to enact a blanket policy that prohibits employees from engaging in outside employment. Such a policy may be difficult to enforce, however, and could result in a good amount of ill will and ultimately the loss of some good employees. Another panacea to limit a public entity’s exposure to the possibility of loss would be to require moonlighting employees to inform the recipients of the services offered by them, that the services are being performed solely by the individual, not by the individual’s employer, and that the public entity assumes no responsibility for the actions of the individual providing such services. However, several states have enacted broad statutes which protect employees from adverse employment action when they engage in lawful conduct while off duty and away from the worksite.

Further, some courts look upon hold harmless agreements or liability waivers with a good measure of skepticism or suspicion.

Another seemingly simple solution to this challenge concerns the purchase of professional liability insurance. Unfortunately, most policies of this ilk specify that employees are covered— but only for those services performed on behalf of the entity. For those policies that will cover moonlighting employees (these policies can be cost-prohibitive), they nevertheless usually require that the employee provide services within her/his specialty. Still, there are some insurance providers who will, in addition to protecting the public employee, extend coverage to the non-governmental entity that has contracted the employee’s services. Still, it can’t be presumed that all moonlighting employees enter into formal contracts with the persons or entities for whom they are providing services.

Like any policy involving the risk manager, the best way to craft a moonlighting policy is to first evaluate the culture of the public entity and the employment setting, and subsequently identify the various liability and management concerns. This will assist management in having a policy that can be applied in a uniform and consistent manner. It has been my experience that, should you decide that a moonlighting policy is a necessary risk management tool for your entity, don't focus on regulating employees' off-duty conduct.

Instead, your policy should focus on the issue of noninterference with the public’s business.

Specifically, the performance and work hours required by the effected employee’s stated duties and responsibilities. A solid moonlighting policy can not only serve to limit your entity’s exposure, but further, can be useful when counseling employees about whatever problems you perceive the other job causes for your entity.

Your moonlighting policy should exclusively deal with employee conduct that is directly tied to your entity’s legitimate public business interests. Such concerns include: • prohibiting any employment that creates legal or ethical conflicts of interest;

• maintaining confidential or proprietary government business information; • prohibiting any act or behavior that adversely affects the entity’s image or reputation; • prohibiting use of work resources, equipment, or benefits for outside employment; and • prohibiting any outside work that interferes with the employee’s job performance.

Clearly, this list is not exhaustive, and your entity may have additional concerns depending upon its structure, function, mission, size, and nature of its employee-employer relationships.

That said, it is critical that the risk manager

continually identify and investigate new incidents of moonlighting that could pose a threat to the organization.

SUMMARY

Many public sector jobs offer various opportunities for employees to earn extra income outside their duties and responsibilities. It is up to the risk manager, in concert with senior management and the entity’s attorney, to craft a policy that minimizes risk, is legally defensible, and employee friendly.

Joe Jarret is an attorney, federal and state mediator and former public risk manager and the pastpresident of the SW Florida Chapter of PRIMA, and PRIMA’s “Author of the Year” for 2016.

It has been my experience that, should you decide that a moonlighting policy is a

necessary risk management tool for your entity, don't focus on regulating employees'

off-duty conduct. Instead, your policy should focus on the issue of noninterference with the public’s business. Specifically, the performance and work hours required by the effected employee’s stated duties and responsibilities. A solid moonlighting policy can not only

serve to limit your entity’s exposure, but further, can be useful when counseling employees about whatever problems you perceive the other job causes for your entity.

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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OUTSIDE EMPLOYMENT: AVOIDING MOONLIGHTING MAYHEM

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

Diversity & Inclusion Series PRESENTED BY MAURICIO VEL A SQUEZ , PRESIDENT AND CEO OF DIVERSIT Y TR AINING 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.

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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

BEST OF THE BLOG – CHECK OUT A PRIMA BLOG POST YOU MAY HAVE MISSED!

ADDRESSING HEALTHCARE IN JAILS

BY KENNY SMITH

T

hroughout the United States, there over 3,200 local and county jails housing more than 700,000 inmates.

Providing adequate medical care to the inmate population is challenging to say the least, which has led to many states contracting out their jail healthcare to private companies.

Unfortunately, many of the leading jail healthcare vendors have been on the receiving end of hundreds of lawsuits, some with multimillion dollar judgements.

Increased exposure to liability and significant medical costs indicate a current healthcare crisis in jails yet public entities remain challenged with controlling costs without jeopardizing the quality of medical services. Taking a proactive approach to establishing strong management and oversight of jail healthcare is necessary to reduce complaints, claims and overall liability to your public entity.

Jail Inmates Have Complicated Healthcare Needs Caring for the pre-existing conditions of jail inmates is a major contributor to the high cost of jail healthcare. Jail inmates tend to have high rates of chronic illness, substance abuse, and mental health conditions. According to data published by the journal American Family Physician, 26.3 percent of jail inmates are presented with hypertension, 63.3 percent with drug dependence or abuse and 44.3 percent with a history of mental health issues.

It’s common for inmates to have multiple pre-existing conditions when they arrive at the jail. It is important to accurately identify, acknowledge and treat these issues. Some courts say that jails need to go so far as to treat the inmate’s conditions regardless of whether the inmate sought prior treatment or not. Once again, your legal council’s advice here is necessary.

Budget Decisions Can Impact Liability and Service Quality A recent study conducted by The Pew Charitable Trusts provided several insights into the

jail healthcare crisis. Decisions made for budgetary reasons can increase exposure to liability and have a tremendous impact on the quality of medical care. One example that can have various negative outcomes is the common practice of not budgeting to staff a jail with healthcare personnel around the clock.

Since jails book new inmates at all hours, some inmates are not screened by trained medical personnel when they arrive. It's easy for correctional staff, who usually do not have medical training, to miss that a new inmate needs medical treatment or has symptoms of a communicable disease. If the inmate or someone the inmate comes in contact with experiences a negative health outcome due to the delayed medical screening, a claim or even a lawsuit could result.

Not having medical care on-site has resulted in unnecessary expenses. When correctional staff cannot reach medical staff for advice about an inmate's condition, their next step is to have the inmate taken to the hospital for an expensive emergency room visit.

Improper Management of Private Providers Can Aggravate the Crisis Many public entities have a contract with a private company that provides jail healthcare. It's important that public entities involve the entity's legal counsel in the creation of these contracts. Otherwise, the public entity may later find it disagrees with the private provider's interpretation of the company's responsibilities.

It's also critical to ensure RFPs are detailed enough for contractors to create adequate proposals. Although such diligence may seem obvious, the aforementioned Pew Charitable Trusts study found critical omissions in the RFPs related to jail healthcare. A sample of their findings follows:

Many RFPs did not include any utilization data.

Seventy of the 81 RFPs they reviewed did not request medication-assisted treatment, an evidence-based protocol for treating substance abuse.

Most RFPs didn't include performance requirements.

When contracts have performance requirements, failure to meet them can have serious consequences for the health of inmates as well as legal action against the public entity. Also, it's important to acknowledge contracts with performance requirements that carry financial incentives or penalties are meaningless if the public entity does not assign anyone to monitor the third-party provider's performance.

Public sentiment toward the healthcare system in jails may never change; however, public entities can certainly work to develop stronger partnerships with medical providers helping to support continued care for their inmate population.

Kenny Smith is the risk control manager for OneBeacon Government Risks.

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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PUBLIC RISK | NOVEMBER /DECEMBER 2020

BY JOANN ROBERTSON, CSP CPSU ASRM CPSI

H

ERE’S HOPING THAT YOUR ENTITY EXPERIENCES A WONDERFUL HOLIDAY SEASON filled with joy and merriment. However, this year the COVID crisis is expected to disrupt many of our seasonal traditions and celebrations.

Newer safety practices, such as proper disinfection, limited capacity, and practicing social distancing, may change our plans. For example, there may be less attendees at our holiday parties or the event may be rescheduled or canceled altogether.

But, with all of our focus on reducing the spread of COVID, let’s review other common seasonal safety hazards:

➊ DON’T GET OVEREXTENDED Extension cords are often brought temporarily into our buildings to power holiday lights and other decorations, but then these cords often remain in place all year posing fire/electrical hazards.

Extension cords are designed to be used on a temporary basis only. Two examples of this temporary type of use includes, a tool to be used during construction or to power an overhead projector for a presentation.

Extension cords should also be UL- listed. In addition, they should never be “daisy chained” or overload an electrical outlet when plugged in.

Daisy Chaining – The practice of plugging multiple extension cords into each other.

Extension cords are often incorrectly used with space heaters. If space heaters are permitted at your facilities, they must shut off automatically if they are knocked over, be UL-listed, not be left running when unattended and never be plugged into extension cords.

UL Listed – A UL listing ensures that a product is safe, properly designed and manufactured. A product bearing the UL listing stamp has been tested and verified to meet the UL standards for safety.

A typical problem occurs when an employee’s workstation (perhaps a monitor or a security guard) is located near a door. If this employee is cold, someone may string a line of extension cords together with a space heater at the end. While this may warm up the employee, it can cause some of the hazards we have just explained, as well as a potential trip/ fall incident.

NOVEMBER /DECEMBER 2020 | PUBLIC RISK

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DON’T CELEBRATE THESE FIVE HOLIDAY HAZARDS

➋ ONE STEP AT A TIME

When decorating areas, it is always tempting to stand on top of a nearby table or chair to hang up holiday decor or artwork. This shortcut will often lead to serious fall and a costly workers’ compensation claim.

Choosing to pull out a stepladder is a much better alternative than standing on furniture.

The stepladder provides a more stable and level surface when hanging up any work by young artists or other seasonal decorations.

➍ WELCOME WINTER

The arrival of colder weather causes pedestrians to begin wearing winter boots, hats and scarves.

But these boots also track snow and ice into our buildings, resulting in wet and slippery floors.

Be sure you have WET FLOOR signs posted as needed and mats are provided. These practices will reduce the chance of slips/falls hazards related to wet and wintry weather.

to the manufacturer’s specifications and it must be documented. To investigate your local region’s specific rules about combustibles, be sure to talk to your code enforcement official or the local fire marshal.

Code Enforcement Official – A sworn or non-sworn inspector, officer or investigator, employed by a city, or county, who possesses specialized training in a number of activities including safety. These officials should be state-certified.

Egress – A place or means of getting out.

An example of a means of egress can include an emergency exit or a fire escape and the pathway or route to get there.

Fire Retardant Spray – Protect your location by reducing the chance of fire by using fire retardant spray for arts and crafts, posters, etc.

Carefully read the directions before purchase or use and follow manufacturer’s instructions.

➎ SEASONS CHANGE ➌ LIGHT THE WAY

As we get closer to winter, the sky becomes darker earlier each day. Pedestrians are more likely to slip/fall at this time, especially when walking outside.

Be sure that the lighting timers at your location are checked and set correctly, proper lighting is provided in all areas, and that any burned out bulbs have been replaced. This is important for sites that are frequented early and late in the day, such as ones with early morning exercise classes or evening activities.

With numerous holidays toward the end of the calendar, it is easy to accumulate an excess of combustible decorations inside the buildings.

Always be on the lookout for and immediately remove any serious fire hazards, such as candles or bales of straw. But it is also important to keep your focus on the amount of other combustible decorations which may be accumulating inside.

It is good practice is to remove all of the decorations for each holiday that has been completed, before adding more layers of other holiday decorations. This will help to minimize the amount of combustibles.

Keep an eye out for scenes such as oversized fireplaces, a giant snowman or a life-sized igloo, since they are usually constructed of cardboard and paper. It is important to be sure doorways, fire exits, and hallways always remain clear of combustibles to ensure proper egress in case of emergency.

Swinging or falling decorations and balloons are also typical culprits in activating security alarms.

Therefore, reducing the number of combustibles can also help building facilities staff get better sleep.

Combustibles can be treated with fire retardant. But this method of protection takes additional work and follow up, since the process must be done according

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PUBLIC RISK | NOVEMBER /DECEMBER 2020

CONCLUSION

When it comes to holiday safety, always consult with your local officials and be sure to follow applicable regulations. Remember that your insurance company and safety committee can also be helpful resources. Share these five tips with your staff at your next meeting.

Stay safe and best wishes for the new year!

Joann Robertson, CSP, CPSI, ARM, CPCU, has more than 30 years of experience in the field of public sector risk management and is a frequent contributor to Public Risk magazine.

RESOURCES Department of Labor, Occupational Safety and Health, Administration (OSHA), Fire Prevention Resource https://www.osha.gov/fire-safety

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