Policyholder Services

Additional benefits under OMIC’s policy

KIMBERLY WYNKOOP, OMIC Senior Legal Counsel

Insureds occasionally run into situations that are not medical professional liability issues, but they nonetheless need legal assistance or incur expenses. Feedback from our policyholders has helped us anticipate such scenarios and find coverage to help them respond to such situations. OMIC’s policy provides a number of additional benefits for disciplinary proceedings, regulatory actions, and cyber liability. This article reviews some of these scenarios and discusses the coverage available under OMIC’s policy to assist insureds.

As part of its peer review process, a hospital is questioning some of an insured’s procedures. The outcome could impact credentialing.

Under OMIC’s Broad Regulatory Protection (BRP) coverage, OMIC will reimburse an insured for legal expenses incurred as a result of a peer review proceeding: a review action by the professional review body of a healthcare facility that has the potential to adversely affect the insured’s clinical privileges there. Under BRP’s reimbursement coverage, the insured has complete freedom of choice of counsel, but if panel counsel is retained, the insured’s 25% copayment is waived. Even with reimbursement coverage, the insured must give OMIC timely notice of the proceeding.

An insured receives notice from the state licensing board alleging he bought misbranded or adulterated medications from an unlicensed distributor.

BRP provides reimbursement of legal expenses for a proceeding by a state licensing authority that arises out of the practice of ophthalmology but is not due to direct patient treatment. (Licensing proceedings arising from direct patient treatment are covered under a different benefit, OMIC’s Disciplinary Proceeding Protection. For an example of this coverage in action, see the Closed Claim Study.)

An insured’s office has sent a bill that contains protected health information to the wrong patient. Another insured has a laptop stolen from her car and her computer system is hacked.

OMIC’s e-MD protection would cover these situations. OMIC would “pay on behalf of” the insured security and privacy breach response costs, notification expenses, and support and credit monitoring expenses incurred by the insured with OMIC’s prior written consent. This covers various expenses to comply with governmental privacy legislation mandating notification to affected individuals, including legal fees, computer forensic and investigation fees, public relations expenses, postage expenses, and related advertising expenses. In addition, OMIC would appoint a public relations consultant if necessary to avoid or mitigate damage to the reputation of the insured resulting from an adverse media report about the breach. OMIC would also pay for credit file monitoring services and identity theft assistance for affected individuals. Unlike the BRP reimbursement coverage described above, this e-MD “pay on behalf of” coverage means that OMIC has the right and duty to appoint these consultants and pay these expenses directly. Therefore, insureds should notify OMIC’s claims department immediately when a covered event occurs.

Risk management issues

Some scenarios that occur are simply risk management issues and not yet incidents that trigger coverage. Insureds should contact the risk management hotline if they require assistance in the following circumstances.

The DOJ shows up at an insured’s office and demands to see patient files. Another insured’s billing is randomly audited by CMS.

The BRP benefit reimburses legal expenses, shadow audit expenses, and fines or penalties due to a billing errors proceeding. A billing errors proceeding must allege presentation of erroneous bills by the insured. In the above two examples, there has not yet been an allegation of erroneous billing, so coverage is not yet available. The insured may wish to consult an attorney if he or she needs assistance with responding to an audit and should call an attorney if investigators appear in person to view or collect patient files. OMIC can provide insureds with panel counsel reference(s) if they wish to hire an attorney who, if the audit or investigation turns into a covered proceeding, is already vetted. Insureds may also seek help from coding experts through the American Academy of Ophthalmology’s Chart-Auditing Service.

An insured using mobile devices to remotely access medical records wants to ensure proper security is in place.

BRP reimburses legal expenses, fines, and penalties for governmental proceedings against the insured alleging violation of HIPAA privacy and security regulations. In this example, no violation has been alleged. Additionally, the e-MD benefit pays on behalf of insureds loss and legal expenses due to a claim for a security or privacy wrongful act, which includes the insured’s failure to prevent or disclose a security breach, or a privacy breach by the insured, which includes violation of any law protecting identifiable financial or medical information. E-MD also covers insureds for regulatory fines and penalties or compensatory awards for security and privacy breaches. The scenario presented does not indicate that any security or privacy breach has occurred. It is a risk management issue.