INCIDENT REPORTING for the RISK MANAGEMENT FUND September 2013

1. INCIDENT REPORTING for the RISK MANAGEMENT FUND September 2013

2. Why Report Incidents The State can be sued for claims of negligence (torts/liability) against its agencies, employees, or volunteers.

3. Tort Liability RiskManagement Program Program was established by the 1995 ND Legislature following a 1994 Supreme Court decision that eliminated the State’s sovereign immunity • The Court’s position was that the State should be held responsible for the negligence (torts) of its agencies, employees, or volunteers

4. Tort Liability RiskManagement Program When the Legislature established the Fund, it created N.D.C.C. Ch. 32-12.2, known as the “Tort Claims Act” • Act governs claims against the State and State employeesacting within the scope of employees’ employment • The Legislature also established: • Risk Management Division as a part of the Office of Management and Budget • Risk Management Fund

5. What Should Be Reported? • ALLincidents and accidents involving non-employees AND employees, no matter how insignificant they seem. • This documents relative facts. • Provides a loss control tool.

6. Will The Entity's Contribution To The RiskManagement Fund Increase With TheNumber Of Incident Reports Filed? NO . . . Incident reports are not a factor in determining an entity’s contribution amount. Incident reports are entered into a database to track trends and implement loss control procedures. Only when an incident turns into a claim by the injured person filing a Notice of Claim form with the Risk Management Division, does it factor into an entity’s contribution amount.

7. Forms To Use When ReportingIncidents And Accidents SFN 50508 for general incidents/accidents (i.e. slip and falls, injuries, property damage). SFN 51301 for accidents involving state owned or leased vehicles. SFN 53601 for incidents involving medical treatment rendered or advice received from State employees to a third party at a State owned or managed medical facility (i.e. State Hospital, Family Practice Centers). • Complete and submit the report forms on-line at www.nd.gov/risk/riskvision/application/sond/.The most current version of the paper forms are atwww.nd.gov/risk/forms/.

8. Why Is It Important To Use Risk Management’s Forms? Incident/Accident reports, investigation reports, or other Risk Management Fund records of a pending or reasonably predictable claim against the State or a state employee are privileged and exempt from the open records law, pursuant to N.D.C.C. § 32-12.2-11. • This means that only Risk Management has the authority to decide if these forms may be disclosed under an open records request while a matter is pending. EXEMPT

9. Why Is It Important To Use Risk Management’s Forms? To Secure The Statutory Protections: • If an entity uses a report form other than SFN 58508, 51301 or 53601, it is important that any documents prepared regarding an incident/accident are attached to the Risk Management forms; and • If any documents prepared regarding an incident/accident are filed after the original report form is filed, it is important to identify that it is to be attached to the particular Risk Management form.

10. The Timing Of Reporting Incidents Prompt Reporting is Critical! • Protects the State’s interests. • Preserves the evidence and information while the facts are fresh. • Helps contain costs. • Enables corrective action to be taken to avoid reoccurrence. Late or inaccurate reporting could jeopardize the defense of a claim or lawsuit!

11. Why Is My Role In PreservingEvidence So Important? A potential claimant has 180 days (approximately 6 months) to file a Notice of Claim form with the Director of OMB. It is best to document all of the information you have while it is fresh in your mind. You may not be asked again about the incident until 6 months after it occurred and the details, if not the entire incident, may be forgotten. • The prompt reporting and preservation of evidence will also aid in the preparation and defense of a claim, as well as early resolution of a claim.

12. The When And Who Of Incident Reporting - General Incidents involving serious injury (death, potential for death, or potential for serious or permanent injury) or extensive property damage, immediately: • Call 9-1-1, and • Report to the Risk Management Division (701-328-7584). All other incidents should be reported on-line to the Risk Management Division within 24 hours of the occurrence or notification.

13. The When And Who Of Incident Reporting - Vehicle State Fleet vehicle accidents involving serious injury (death, potential for death, or potential for serious or permanent injury) or extensive property damage, immediately: • Call 9-1-1, • Call State Radio (1-800-472-2121) and report that “this is a Risk Management accident”. All other incidents should be reported on-line to the Risk Management Division and State Fleet within 24 hours of the occurrence or notification.

14. Who Should Fill Out A Report Of An Incident/Accident? The involved state employee and supervisor, or the person with whom the injured person makes contact by phone or in person should work with the entity’s Risk Management Contact to complete the form. As either the person involved, a witness, or the first one on the scene, he/she will have the crucial information to complete the initial Report. • Contact the Agency Risk Management Contact about procedures for submitting the report on-line.

15. What To Do When Notified, Witness, Or Are Involved In An Incident Or Accident 1. Secure the situation. Do not endanger yourself or others. 2. Determine and document: • Names and roles of the people present; • Equipment, vehicles, or other property involved, along with their placement and condition; • Weather conditions and visibility; • State of the general environment, including road surface, placement of signs, etc.

16. What To Do When Notified, Witness, Or Are Involved In An Incident Or Accident 3. Notify your Risk Management Contact. The Contact will know the proper reporting procedures and the steps to implement necessary corrective actions. If the situation warrants, you may need to take corrective actions immediately.

17. What To Do And Say At The Scene Of An Accident Or When Contacted For Information About The Incident/Accident • Do not admit fault, liability, or negligence. • Exchange general contact/identification & liability coverage information with the other party & law enforcement. When discussing the matter, give only facts, not opinions. • Statements & details can be provided to the entity’s Risk Management Contact, Risk Management, attorney’s for the State, & adjusters for the State. Contact Risk Management before making statements or discussing the matter with anyone else, i.e. media, general public, insurance adjuster for other party, attorney for other party.

18. What To Do And Say At The Scene Of An Accident Or When Contacted For Information About The Incident/Accident • Do notput anything in writing other than what is required for the incident report, investigation materials, and other items approved by Risk Management! • If asked to be interviewed by a representative of the other party’s insurer or an attorney, advise them the questions must be submitted to Risk Management in writing. You should not release information about the incident/accident unless authorized by Risk Management.

19. Explaining The State’sLiability Coverage You can tell other parties and/or law enforcement that liability coverage is the “North Dakota Risk Management Fund, pursuant to N.D.C.C. ch. 32-12.2.” There technically is not a policy number because the coverage is by statute, rather than an independent insurance company. State fleet vehicles should have an insurance card with this information in the packet given to the driver at checkout. See an example of the card on the next 2 slides.

20. Explaining The State’sLiability Coverage • North Dakota State Fleet Vehicle • Liability Identification Card • ND Risk Management (State Owned Vehicles) self-retention fund • No policy number - coverage is pursuant to N.D.C.C. ch 32-12.2 • Effective 07/01/97; No Expiration • Risk Management Division: 1-866-534-2834; 701-328-7584 • Report all serious accidents immediately to: • 9-1-1, and State Radio 1-800-472-2121 •  State Employee accident reporting instructions on reverse side

21. Explaining The State’sLiability Coverage State Employee Accident Reporting Instructions 1. Obtain name(s) and address(es) of: a. driver(s) and occupant(s) of other car(s), and b. injured. 2. Obtain insurance information of other driver(s) involved. 3. Obtain name(s) and address(es) of all witnesses. 4. Make no comment or statement regarding the accident except to police or a representative of the State. 5. Within 24 hours, report the accident on-line to Risk Management and State Fleet at www.nd.gov/risk/. 6. Contact for Questions: Risk Management 701-328-7584, 1-866-534-2834 and State Fleet 701-328-1472.

22. How Can I Fill Out A Report If I DidNot See It Happen? If you were the first person the potential claimant was in contact with after the incident occurred, even if you did not see it happen, you are the person with the most first-hand information and are in the best position to complete the form. Plus, you have the opportunity to obtain more information. For example: if possible, go to the location of the incident to view the site; take pictures; note the weather; note the conditions of the area; identify witnesses, if any; implement corrective actions, if necessary. You Are A Key To Preserving The Evidence!

23. How Can I Fill Out A Report If I DidNot See It Happen? State only the facts, not opinions. You should not state what you “think” happened. Only document what the injured person told you and what you are able to verify (such as weather conditions or condition of the location). Example: “I did not see the incident. At 9:00 a.m., Jane Doe reported to me that she was walking to the east building entrance for an 8:30 am meeting and she slipped on a patch of ice on the sidewalk. I accompanied Jane to the area she identified as the location of the incident. I noted that the sidewalk was clear and dry (OR I noted a patch of ice that had not been salted). Pictures taken.”

24. How To Fill Out A Report If The Event Isn’tReported Until Days, Weeks,Or Even Months After It Happened Do the best that you can. Document what the potential claimant reported to you and note that you were not aware of the event until you received the recent report. • If the entity has records/documents/logs to verify or dispute the claim (i.e. we did not have equipment and crew at the location and time reported), please note and attach documentation.

25. What If The Injured Person Wants To Fill Out The Incident Report Form? • The potential claimant should notbe given the incident/accident forms to complete. The initial incident and accident reports contain the State’s full version and facts of how the incident happened. • The potential claimant should be informed that a report will be filed with the Risk Management Division and a Notice of Claim form will then be mailed directly to them (OR if requested, a copy of the form can be given to them from the website www.nd.gov/risk/forms/docs/sfn50552.pdf). The Notice of Claim form will give them an opportunity to tell their version and facts of the events.

26. What If The Potential Claimant Wants The Entity To Repair Its Damage Immediately And/Or Ask For A Commitment For Payment? • Explain to the potential claimant that you and your entity do not have the authority to make that determination. • Tell him/her that a report of the incident/accident will be forwarded to the Risk Management Division for processing. In addition, the Risk Management Division will contact him/her. • Provide the Claims Card to the party and inform them that they can call Risk Management for more information (701-328-7584).

27. What If The Potential Claimant Wants The Entity To Repair Its Damage Immediately And/Or Ask For A Commitment For Payment? Risk Management Claim Cards Direct questions pertaining to a potential claim against the state of North Dakota, pursuant to N.D.C.C. ch. 32-12.2, the State Tort Claims Act, to the Risk Management Division at 1-866-534-2834 The Division’s office hours are Monday-Friday 8:00 am to 5:00 pm. See reverse side for additional information.

28. What If The Potential Claimant Wants The Entity To Repair Its Damage Immediately And/Or Ask For A Commitment For Payment? The State and State agencies are provided liability coverage under the North Dakota Risk Management Fund. By law, in order for the Fund to compensate you for your loss, it would be necessary for the investigation to determine that the damages were caused by negligence on the part of the State or an employee of the State. N.D.C.C. § 32-12.2-04 provides that a claim against the state or a state employee must be presented to the Director of the Office of Management and Budget within one hundred eighty (180) days after the alleged injury or property damage was discovered.

29. Completing SFN 50508 Department Location Code Fill in your Department Location Code. • If you are not sure of your entity’s Code, a complete list of the Codes can be found in Section 3 of the Risk Management Manual.

30. Completing SFN 50508 Differences Between The Incident BoxAnd The Claim Form Requested Box • When you only check the Incident box, you are telling Risk Management that the purpose of the report is to give notification of an incident, but Risk Management does not need to get in touch with the person involved or send him/her a Notice of Claim form. • When you check the Claim Form Requested box, you are telling Risk Management that a Notice of Claim form needs to be sent to the person involved because he/she indicated that they will be seeking compensation for the loss.

31. Completing SFN 50508 Destruction Hold Notice This gives immediate notification to Risk Management and the State entity that any documents regarding the incident must be retained until Risk Management and legal counsel can determine the scope of the matter. This prevents any documents, records, or evidence related to an incident or claim from being destroyed and disposed of pursuant to a records destruction schedule.

32. Completing SFN 50508 Describing TheLocation Of The Incident Use any and all information to identify the location with accuracy, including: • the street address, • city, • area (sidewalk, parking lot, east entrance), • building name, • distance from building, • highway and mile marker, • etc.

33. Completing SFN 50508 Evaluation Of Whether AnIncident Could Have Been Prevented This part of incident reporting gives the employee and his/her supervisor the opportunity to evaluate the incident, to review how it happened, and if something could have been done different. Some factors to consider are: • Policies and procedures: which ones applied and were they being followed? If not, explain why? • Do the policies and procedures need to be revised or updated? • Is there a need for additional training? • Is there an unsafe condition that needs to be corrected? • Do inspections need to be done more often? • This involves a “factual” analysis, rather than based on opinions.

34. Completing SFN 50508 Will Preventable Or CorrectiveAction Be Necessary For Every Incident? NO. There are incidents that are not preventable. However, the possibility should still be explored for every incident. It is also important to document and record whether preventable or corrective action was taken or not. Further, this automatically gives notification to Risk Management that the incident was addressed by the entity. When corrective action is needed, it is a good practice and documentation to immediately complete a work order and attach a copy to the incident report. TIP

35. Completing SFN 50508/51301 What To Include InThe General Comments Any facts or additional information that you know about the incident. Diagrams may be applicable, if pictures are taken it can be noted here that they will be attached or e-mailed, the weather conditions that existed or conditions of the location (icy/slippery, wet, snow covered), observations about the potential claimant (running, slippery shoes, carrying large box), etc. Example: “I did not see the incident, but I spoke with Jane Doe within ½ hour of her slipping on the sidewalk. She was wearing no-grip, high-heeled shoes. She told me . . . Attached you will find the pictures taken . . . “

36. Completing SFN 50508/51301 What Can I Expect AfterThe Reports Are Completed? When the report forms are completed and submitted on-line, the entry user will get an e-mail confirming that they have submitted the report. The entity’s Risk Management Contact will also receive an e-mail, along with a file attachments of the report. • Risk Management may contact you for more information or to discuss the incident. • Other parties, such as insurance companies and attorneys, may also contact you for information. If so, refer them, their questions, or documents to the Risk Management Division. You should not release information about the incident unless authorized by Risk Management.

37. How Can I Be Sure Risk ManagementReceives The Reports That I File? • In addition to e-mail notifications from the on-line system, Risk Management sends monthly claim reports AND quarterly incident reportsto the entity’s Risk Management Contact. • If Risk Management has received the reports, the incidents will appear on one of the loss run reports. • The reports should be reviewed by the Contact and compared with the reports submitted to Risk Management. • If an incident is not on a loss run report, the Contact needs to notify Risk Management. • Once it appears on a loss run, the entity’s copy of the report should be destroyed.

38. Importance Of Cross-checking The Filing OfReports With The Monthly Loss RunsSent By Risk Management Potential claimants have only 180 days from the date of their incident to file their official Notice of Claim with the Risk Management Division. If the reporting entity does not ensure that the Reports have been received by Risk Management, the 180 day time period can lapse and the claimants may lose their opportunity to file a claim with the State for their loss. • In this situation and if it was a valid, payable claim, not only is it bad public policy and relations, the entity may decide to pay the claim out of their own budget as the Fund would be barred from it.