House Bill 1569

AN ACT TO AMEND SECTION 83-48-5, MISSISSIPPI CODE OF 1972, TO EXPAND THE MEDICAL MALPRACTICE INSURANCE AVAILABILITY PLAN THAT IS ADMINISTERED BY THE MISSISSIPPI TORT CLAIMS BOARD TO MAKE AVAILABLE PRIOR ACTS EXTENDED REPORTING PERIOD COVERAGE TO ALL PARTICIPANTS OF THE PLAN AT ADDITIONAL PREMIUM ASSESSMENTS FOR SUCH COVERAGE AND TO PAY ALL MEDICAL MALPRACTICE INSURANCE PREMIUMS FOR CERTAIN RETIRED PHYSICIANS WHO PROVIDE VOLUNTEER UNPAID HEALTH CARE SERVICES; TO AMEND SECTION 11-46-1, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "EMPLOYEE" FOR PURPOSES OF LIMITED LIABILITY UNDER THE TORT CLAIMS BOARD TO INCLUDE THOSE PHYSICIANS WHO PROVIDE HEALTH CARE SERVICES TO MEDICAID RECIPIENTS, STATE AND SCHOOL EMPLOYEES HEALTH INSURANCE PLAN PARTICIPANTS AND CHILDREN'S HEALTH INSURANCE PROGRAM PARTICIPANTS IF AT LEAST SIXTY-FIVE PERCENT OF THE PHYSICIAN'S PATIENTS ARE MEDICAID RECIPIENTS AND TO INCLUDE CERTAIN RETIRED PHYSICIANS WHO PROVIDE VOLUNTEER UNPAID HEALTH CARE SERVICES TO ANY PUBLIC ENTITY OR PRIVATE ENTITY; TO CREATE AN ADVISORY COUNCIL TO ASSIST THE MISSISSIPPI TORT CLAIMS BOARD IN DETERMINING WHETHER A PHYSICIAN MEETS THE PERCENTAGE REQUIREMENT NECESSARY TO QUALIFY AS AN EMPLOYEE FOR LIMITED LIABILITY PURPOSES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The Legislature recognizes the importance of assuring adequate health care services for all Mississippians, and it acknowledges that physicians are a vital component of providing such services. The Legislature finds that because of the makeup of the citizenry of the state and the percentage of citizens who are (a) Medicaid recipients, (b) State and School Employees Health Insurance Plan participants and (c) Children's Health Insurance Program participants, physicians who provide health care services to such individuals are providing an essential public service and that it is in the public interest to provide funding to further address medical malpractice insurance needs of these physicians.

SECTION 2. Section 83-48-5, Mississippi Code of 1972, is amended as follows:

83-48-5. (1) There is created the Medical Malpractice Insurance Availability Plan that shall be funded by the participants in the plan. The plan shall be administered by the Tort Claims Board created under Section 11-46-18.

(2) (a) The plan shall provide coverage for medical malpractice to hospitals, institutions for the aged or infirm, or other health care facilities licensed by the State of Mississippi, physicians, nurses or other personnel who are duly licensed to practice in a hospital or other health care facility licensed by the State of Mississippi. Participation in the plan shall be voluntary for any hospital, institution for the aged or infirm, or other health care facilities licensed by the State of Mississippi, physicians, nurses and any other personnel who are duly licensed to practice in a hospital or other health care facility licensed by the State of Mississippi. However, no state entity may participate in the plan. The term "state" as used in this subsection has the meaning ascribed to that term under Section 11-46-1. The plan shall make available tail (extended reporting period) coverage for participants of the plan at an additional premium assessment for such coverage. The plan shall make available prior acts extended reporting period coverage (retroactive to the inception date of the physician's last medical malpractice policy) for participants of the plan at an additional premium assessment for such coverage. The board shall encourage participation in the insurance industry market. Any duly licensed qualified Mississippi agent who writes a policy under the plan may receive a commission not to exceed five percent (5%) of the premium assessment as full compensation.

(b) The limits of coverage under the plan shall be as follows:

(i) For participants who are "political subdivisions" and participants who are "employees" of political subdivisions, as such terms are defined under Section 11-46-1, a maximum of Five Hundred Thousand Dollars ($500,000.00), per single occurrence, and Two Million Dollars ($2,000,000.00), in the aggregate, per year, for all occurrences;

(ii) For all other participants, a maximum of One Million Dollars ($1,000,000.00), per single occurrence, and Three Million Dollars ($3,000,000.00), in the aggregate, per year, for all occurrences; and

(iii) For tail coverage, the plan shall provide the same limits of coverage as designated in subparagraphs (i) and (ii) of this paragraph (b).

(iv) For prior acts extended reporting period coverage, the plan shall provide the same limits of coverage as designated in subparagraphs (i) and (ii) of this paragraph (b). For the purpose of providing funds, in addition to assessments, for prior acts extending reporting period coverage, the Mississippi Tort Claims Board shall use monies in the special fund created under Section 7 of House Bill No. 1569, 2004 Regular Session.

(3) Policies may be underwritten based on participant history. All rates applicable to the coverage provided herein shall be on an actuarially sound basis and calculated to be self-supporting. Policies for prior acts extended reporting period coverage shall be underwritten at the lowest premium rates possible on an actuarially sound basis.

(4) Every participant in the plan shall:

(a) File with the board a written agreement, the form and substance of which shall be determined by the board, signed by a duly authorized representative of the participant, that the participant will provide services to (i) Medicaid recipients, (ii) State and School Employees Health Insurance Plan participants, and (iii) Children's Health Insurance Program participants. The agreement must provide, among other things, that the participant will provide services to Medicaid recipients, State and School Employees Health Insurance Plan participants, and Children's Health Insurance Program participants in a manner that is comparable to the services provided to all other patients and shall be made without balance billing to the patient; and

(b) Pay all assessments and premiums established by the board.

(5) This chapter shall not preclude any hospital, institution for the aged or infirm, or other health care facilities licensed by the State of Mississippi, physician, nurse or other personnel who are duly licensed to practice in a hospital or other health care facility licensed by the State of Mississippi from procuring medical malpractice insurance from any source other than the plan.

(6) Notwithstanding any other provision of this section to the contrary, the Mississippi Torts Claim Board shall use so much of the monies in the special fund created in Section 7 of House Bill No. 1569, 2004 Regular Session, as may be necessary to pay all medical malpractice insurance premiums for not more than an aggregate of twenty-five (25) physicians described in Section 11-46-1(f)(ii).

(7) The Tort Claims Board shall have the following powers and duties:

(a) To expend money from a loan from the Tort Claims Fund in an amount not to exceed Five Hundred Thousand Dollars ($500,000.00) for the start-up costs of administering the Medical Malpractice Insurance Availability Plan;

(b) To approve and pay claims of participants;

(d) To contract with accountants, attorneys, actuaries and any other experts deemed necessary to carry out the responsibilities under the plan. The outsourcing of any function of the board shall be provided by Mississippi residents or Mississippi domicile corporations, if available;

(e) To employ not more than five (5) persons in time-limited positions to assist the board in the administration of the plan;

(f) To contract for administration of the claims and service of the plan to a third party. The outsourcing of any function of the board shall be provided by Mississippi residents or Mississippi domicile corporations, if available;

(g) To use monies in the special fund created under Section 7 of House Bill No. 1569, 2004 Regular Session, for the purposes provided in subsections (2)(b)(iv) and (6) of this section.

(h) To adopt and promulgate rules and regulations to implement the provisions of the plan. The Tort Claims Board shall adopt such rules and regulations as may be necessary to ensure that the plan remains actuarially sound. The board shall retain the limited liability established by Section 11-46-15; and

(i) To submit an annual report on or before March 1 each year to the House and Senate Insurance Committees. Such report shall contain:

(i) Certification by a qualified actuary that the plan is solvent;

(ii) The number of participants in the plan;

(iii) The number of claims filed and paid by the plan; and

(iv) The amount of all assessments and fees collected from the participants in the plan.

(8) Nothing contained in this section shall be construed as repealing, amending or superseding the provisions of any other law and, if the provisions of this section conflict with any other law, then the provisions of such other law shall govern and control to the extent of the conflict.

SECTION 3. Section 11-46-1, Mississippi Code of 1972, is amended as follows:

11-46-1. As used in this chapter the following terms shall have the meanings herein ascribed unless the context otherwise requires:

(a) "Claim" means any demand to recover damages from a governmental entity as compensation for injuries.

(b) "Claimant" means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.

(d) "Department" means the Department of Finance and Administration.

(e) "Director" means the executive director of the department who is also the executive director of the board.

(f) "Employee" means:

(i) Any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; provided, however, that for purposes of the limits of liability provided for in Section 11-46-15, the term "employee" shall include physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under such contract. The term "employee" shall also include any physician, dentist or other health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites. The term "employee" shall also include any physician, dentist or other health care practitioner employed by any university under the control of the Board of Trustees of State Institutions of Higher Learning who practices only on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning. The term "employee" shall also include any physician, dentist or other health care practitioner employed by the State Veterans Affairs Board and who provides health care services for patients for the State Veterans Affairs Board. The term "employee" shall also include Mississippi Department of Human Services licensed foster parents for the limited purposes of coverage under the Tort Claims Act as provided in Section 11-46-8. For the purposes of the limits of liability provided for in Section 11-46-15 and for no other purpose under this chapter, the term "employee" also shall include any physician who provides health care services to Medicaid recipients, State and School Employees Health Insurance Plan participants and Children's Health Insurance Program participants, provided that at least sixty-five percent (65%) of the physician's patients, as determined by the board, are Medicaid recipients; and

(ii) Any retired physician who provides volunteer unpaid health care services to any public entity or private entity. For the purposes of this subparagraph (ii), "public entity" means any agency, department, institution, instrumentality or political subdivision of the state, or any agency, department, institution or instrumentality of any political subdivision of the state; and "private entity" means any business, organization, corporation, association or other legal entity which is not a public entity.

(g) "Governmental entity" means and includes the state and political subdivisions as herein defined.

(h) "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.

(i) "Political subdivision" means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, community hospital as defined in Section 41-13-10, Mississippi Code of 1972, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.

(j) "State" means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.

(k) "Law" means all species of law including, but not limited to, any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.

SECTION 4. There is created in the State Treasury a special fund to the credit of the Mississippi Tort Claims Board, which shall be comprised of any funds that may be made available for the fund by the Legislature. Monies in the fund shall be expended by the Mississippi Tort Claims Board, upon appropriation by the Legislature, only for the purpose of providing additional funds for prior acts extended reporting period coverage as provided in Section 83-48-5 and for paying the medical malpractice premiums for those physicians described in Section 11-46-1(f)(ii) as provided for in Section 83-48-5. Unexpended amounts remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned or investment earnings on amounts in the special fund shall be deposited to the credit of the special fund.

SECTION 5. There is created an advisory council to assist the Mississippi Tort Claims Board in determining whether a physician meets the percentage requirement under Section 11-46-1(f) to qualify as an employee. The advisory council shall be composed of the Executive Director of the Mississippi Medical Association or his designee; the President of the Mississippi Medical and Surgical Association or his designee; the administrator of the Mississippi Tort Claims Board or his designee; two (2) physicians appointed by the Lieutenant Governor; and two (2) physicians appointed by the Speaker of the House of Representatives.

SECTION 6. This act shall take effect and be in force from and after July 1, 2004.