Michigan’s No-Fault Auto Insurance System Might Be Rife With Fraud. So Now What?

by Arin Greenwood on July 19, 2010

traffic lights, Grand Rapids, Michigan photo by foto footprints/Flickr, used under a Creative Commons license

Dennis Handley is an auto insurance fraud investigator in Michigan. For the most part, he is the insurance fraud investigator in Michigan—the other investigator is just part-time.

Handley investigates “questionable claims”—insurance claims that do not seem entirely valid—for the National Insurance Crime Bureau. The NICB is a not-for-profit organization funded by property/casualty insurance companies, which, in its words, “partners with insurers and law enforcement agencies to facilitate the identification, detection and prosecution of insurance criminals.” It’s a partnership that does not always come easily.

As you might expect from someone who spends his day investigating fraud in Michigan’s auto insurance system, Handley tends to think there is a lot of it to be found: fraud that’s driving up premium rates and should be stopped with major reforms to Michigan’s unique auto insurance system.

In that vein, industry groups are proposing reforms to Michigan’s unique system, reforms they say will help reduce fraud in the system and thus reduce auto insurance premiums.

What you might not expect is that it’s remarkably hard to pin down how much fraud actually exists in Michigan. That leads some people to oppose the proposed reforms, claiming that the industry is looking for ghost fraud as a good excuse to reduce the benefits it pays out to Michiganders.

Without data, it’s almost impossible to know who’s right. Does that mean that these reforms shouldn’t happen?

Let’s start with what is known. Michigan, like 11 other states and Puerto Rico, has a no-fault, as opposed to tort-based, auto insurance system. But Michigan has an unusual version of no-fault: it is the only state in the nation that provides for unlimited lifetime Personal Injury Protection (PIP) benefits—money to pay for medical claims and certain other accident-related expenses.

Under any no-fault system, a person injured in a vehicle collision is compensated for accident-related medical costs (and some other costs, which vary by state) by their own insurer. Damages are limited to actual costs; non-economic damages such as pain and suffering are generally not compensable under a no-fault system.

And as in most no-fault auto insurance systems, tort suits against negligent drivers are not allowed, except under certain special circumstances; Michigan allows for tort suits against negligent drivers in cases of death, permanent serious disfigurement, or serious impairment of body function, a standard that is not infrequently litigated. Tort suits are also allowed in a small handful of other highly specific circumstances, such as when a driver causes $500 worth of uninsured damage to another driver’s car, in out-of-state accidents, or in in-state accidents involving an out-of-state resident.

No-fault auto insurance policies are generally capped. New York’s no-fault insurance policies are capped at $50,000, meaning that auto insurance pays up to $50,000 worth of medical (and some other) costs after an accident, and the remaining costs are the responsibility of the injured party, who generally may sue the other driver for such costs if the other driver is at fault. New York’s caps are at the high end—other states’ caps are lower. Kentucky, for example, has a $10,000 cap on PIP benefits.

Michigan, alone among no-fault states, provides for uncapped PIP benefits. And Michigan auto insurance is expensive.

The concept of no-fault insurance first arose at the turn of the last century when automobiles were beginning to make their dangerous presences known on city streets. In the mid-1960s, Professors Robert Keeton and Jeffrey O’Connell published Basic Protection for the Traffic Victim, which brought the concept further along. Time Magazine’s 1966 story on the Keeton-O’Connell plan describes it as an answer to a tort system clogging the courts with costly, complex cases that had “been steadily boosting the price of auto insurance, but the amount paid out in accident awards remains far less than the 50¢ of each dollar that the insurance companies collect in premiums.”

Keeton and O’Connell’s no-fault plan, under which car owners would carry $10,000 policies for out-of-pocket costs, including medical bills, hospital bills, and 90% of lost wages—“on the theory that 100% payment would encourage malingering,” Time reported—was proposed to cure these ills. Policies would cost less, accident victims would be adequately compensated by their own insurers, and courts would cease to be overburdened, or so the story went.

The plan was appealing, and at its peak, twenty-five states had implemented some form of no-fault auto insurance. (The forms vary, and if you are the sort of nerd who would like to know more about these varied forms, see the Rand Corporation’s recent monograph “The U.S. Experience with No-Fault Automobile Insurance.”)

It turned out that no-fault auto insurance was generally accomplishing what it was intended to achieve—but only mostly. Over time the costs of medical care in no-fault states became vastly higher than in tort states, and auto insurance premiums in no-fault states were also significantly higher than in tort states. These costs rose high enough that some states—most recently Colorado, in 2004—got rid of or otherwise limited their no-fault regimes. According to the Rand Corporation’s monograph, Colorado auto insurance premium costs went down by 35% between July 2003 and December 2007.

The National Association of Insurance Commissioners (NAIC) has reported that Michigan’s rates are in fact the 12th highest in the country. In its “2006/2007 Auto Insurance Database Report” the NAIC found that in 2006-2007, the most recent reported-on years, the national average spent per vehicle per year for insurance was $795. Michigan’s average premium was $928—far closer to the nation’s highest, $1,043 in the District of Columbia, than the lowest, North Dakota’s $512 average.

Detroit, meanwhile, has the highest average auto insurance of any city in the United States: $4,759 per year, more than $1,000 higher than the second-most expensive city, Philadelphia, which has an average annual premium of $3,734.

These high rates are caused by a combination of factors—some known, some not.

Of the known causes, the lion’s share of the cost is likely Michigan’s uniquely generous auto insurance system which mandates that every auto policy provide uncapped benefits for PIP claims along with the skyrocketing costs of medical care in the state, which by some reports have escalated even higher and faster in Michigan than in the rest of the states.

The largest PIP claims are backstopped by the Michigan Catastrophic Claims Association—the MCCA—a government-mandated, technically private entity that reimburses no-fault auto insurers for claims that exceed $460,000. (This number rose to $480,000 on July 1, 2010.) Michigan drivers are assessed a yearly per-car amount to cover both the claims and administrative costs associated with the MCCA, which amounted to $124.90 per car in 2009-2010. This number rose to $143.09 per car on July 1, 2010. Since the MCCA was created in 1978, more than 24,500 claims have been made, and the MCCA says it will pay out more than $71 billion on them.

Cost shifting may also play a role. By the state government’s own estimation, almost one third of Michigan’s population is medically underserved (according to the U.S. Department of Health and Human Services, that means they have “too few primary care providers, high infant mortality, high poverty and/or high elderly population”). The state estimates that more than 10 percent of the population is medically unserved, a term that isn’t defined but seems to mean people who lack medical services altogether. It seems reasonable, then, to assume that cost shifting from private auto insurance to hospitals and other facilities that serve Michigan’s large uninsured and underinsured population also accounts for some premium costs, especially considering that in Michigan this practice is legal.

How much of a role does fraud play in the high costs? That part is more difficult to pin down.

Michigan’s PIP benefit presents an obvious opportunity for enhanced medical costs – meaning that medical service providers may charge more for services to people whose bills will be covered by auto insurers than they otherwise would. And indeed, Michigan’s average PIP claim is almost $33,000. In Utah the average claim is approximately $30,000 less than that: $2,219. Even in New Jersey, the state with the second-highest average PIP claim, the average claim is just under $17,000, about half of Michigan’s average claim.

These higher costs look fishy. “Are people in Michigan either healed twice as fast or twice as healthy at the end of the process?” asks Dr. Robert Hartwig, president of the Insurance Information Institute. “No. The system in Michigan is just out of control. And I don’t think legislators in Michigan understand how anomalous and how expensive their system is compared to other states.”

But skyrocketing legitimate costs are one thing. This unique benefit also presents an obvious opportunity for costly fraud, as any particular instance of fraud could result in unlimited costs. And there are plenty in the industry who say that the opportunity is being taken.

“With unlimited benefits comes unlimited costs, and that makes Michigan the last and greatest blank check in the American health care system today,” says Hartwig. “Even without any fraud or abuse, the fact that this benefit is uncapped is going to lead to very high costs and very high premiums. But the fact that the uncapped benefit is so anomalous means that it is a magnet for fraud and abuse. It is literally like waving a red blanket in front of a bull and daring it to stay away. It simply can’t. So to fraudsters and scamsters, states like New York, with a very high limit of $50,000, or Michigan, with an unlimited benefit, are very, very attractive.”

How attractive? Well, Dennis Handley is certainly busy.

“It usually starts out, you have an individual that does or doesn’t have insurance already,” says Dennis Handley. “If they don’t have insurance they’re approached by what we call a runner. Probably this runner works for an attorney or for a doctor. He approaches people either through senior citizens centers or through welfare centers. These are usually people who are down-and-out in their luck. He offers them a deal: they can make some money if they go along and pick up a car insurance policy and have an alleged accident, and then get treated by one of our illustrious physicians in the state.”

A case filed in the United States District Court, Eastern District, Southern Division in late 2009 by Allstate against two-dozen defendants—including an ambulance service, physical therapy providers, several doctors, a medical imaging center, a medical billing service, and some runners—for RICO violations lays out the way these groups work together to commit insurance fraud. The case, Allstate Ins. Co. v. Global Medical Billing, Inc., et al., is a conspiracy theorist’s dream; all that’s missing is covert involvement by the FBI.

We don’t yet know what will happen with Allstate’s case, but Handley’s seen enough to believe that there really are grand conspiracies, as well as lots of other kinds of auto insurance fraud.

Staged accidents leading to false claims for treatment are a common type of fraud. The treatment tends to be for hard-to-diagnose injuries such as soft-tissue damage, to make it more difficult for an insurance company to prove that the driver isn’t injured.

Another kind of fraud Handley says he’s seen a lot of involves legitimate claims for real injuries that later evolve into false claims. These frauds are committed both by medical providers and by insured drivers. They’re usually for $20,000 to $40,000, until the insurance companies catch on.

Frequently, Handley says, fraud committed by drivers involves attendant care, the day-to-day care accident victims are entitled to by state law for as long as they need it; attendant care can be performed by family members, trained nurses, or other care providers, and the hourly rate for this care is not set by statute. Replacement services are also prone to fraud, Handley says. These are the activities that a person would perform for themselves were they not injured, such as snow shoveling, cooking, and the like, which is available for three years, and, by statute, may receive $20 per day for these services. It works like this: a driver legitimately in a car accident files legitimate claims for medical services, but less legitimate claims are also filed. Family members may claim to be providing replacement services or attendant care; both kinds of care are difficult to track.

“They bill $20 per day; are they gone for three of those hours?” says Handley. “How are you going to prove that?”

The strangest version of this fraud-creep that Handley says he’s seen involved a lab that does blood tests. Insurers would pay the company $3 for one test when the test was done by hand, but wouldn’t pay anything when the test was done by machine.

“A lab got smart,” says Handley. “They added on $3 for the test, made it $103. Who looks at $3 as being fraud? It’s got to be the biggest fraud ever in the country. $50, $60 million bucks. For a $3 charge.”

A tragic—and expensive—example of add-on fraud, Handley says, involved the father of a child who was catastrophically injured in a car accident.

“It was a substantial amount of money coming into the house, to the tune of a few million bucks per year,” says Handley. “This went on and on. And it turned out meanwhile the kid had passed away. The father was still collecting the money. He even sent out the resuscitator to be serviced. In the meantime the father walked away with almost two million bucks. This is where an honest claim turned into a dishonest claim.”

Hartwig says that in Michigan this sort of grey-area insurance abuse is more common than clear-cut fraud.

“What you see more of is a situation where a claim treated through the no-fault auto system winds up costing far, far more than if it were treated under any other delivery mechanism for health-care services,” says Hartwig. “Same back strain, the doctor orders two x-rays where it would normally be one. Is this abuse? Absolutely. These claims cost far more to treat within the no-fault system than outside of it. In Michigan it’s principally going to be a situation where it’s excess utilization, which suggests that it’s provider-related. There can be attorneys involved with this as well, who might turn around and try to sue insurers if they try to challenge a claim as fraudulent.”

Are there non-anecdotal indications of fraud in the Michigan system? There are – though they are evocative but not dispositive.

For example, car crashes in Michigan are both less frequent and less severe than they are in other states, but the state has a higher rate of traumatic brain injuries caused by vehicle collisions than in the rest of the country, according to data analyzed by the American Insurance Association. Traumatic brain injury is the kind of claim that gives fraud investigators pause because it is both hard to prove and expensive to treat.

Michigan residents are also significantly more likely to file claims for diagnostic tests such as x-rays and imaging scans than similarly situated claimants in other states. This too is a signal to fraud investigators that something is amiss.

In addition, the number and dollar amount of claims against the MCCA have skyrocketed over the years even though the number of auto accidents in Michigan has fallen—and the lion’s share of the claims are for soft-tissue injuries such as muscle damage, sprains, and strains. You’ll have guessed by now that fraud investigators find soft-tissue injuries to be suspicious: like brain injuries, they’re hard to diagnose and may involve costly treatment. However, it seems likely that improvements in medicine and automobiles have made some accidents that would have killed a person in earlier years now leave that person with catastrophic injuries instead.

The Insurance Information Institute is working on its calculation of Michigan’s “fraud tax”—the amount that insurers are actually billed by medical providers versus what they should be charged based on other pricing benchmarks.

“It will be high,” says Hartwig. “The problem with Michigan is that with an unlimited benefit and no fee schedule, many of the costs may simply be inflated. Basically, the state is a blank check. There’s also cost-shifting into the system from the general health care system. It’s hard to quantify this effect, but it appears to be substantial.”

Without quantification, though, there’s plenty of skepticism.

“The only time you know a claim is fraudulent is when you get someone who’s convicted by a jury of twelve of their peers,” says claims investigator Handley. “Or they admit to a judge they committed fraud. The rest of it is [a matter of] highly suspicious claims.”

Given the lack of data, it is hardly surprising that not many of the numerous proposals for reforming Michigan’s auto insurance system are designed to reduce fraud, at least not the kinds of fraud outlined in this article. Instead they tend to concentrate on telling the insurance companies what rates they can charge. For example, an insurance legislation package that has passed the House but appears to have failed in the Senate would prevent insurers from raising rates, force rate cuts, impose criminal penalties on “bad faith,” and stop insurers from using credit scores to set rates.

Some proposals, however, do directly address the issue of fraud in the system. The Insurance Institute of Michigan (IIM) proposes shortening the amount of time medical providers have to submit claims, from one year to ninety days, and outlawing the use of “runners, cappers, and steerers” in making auto insurance claims.

IIM has also proposed the creation of a “fraud bureau”—paid for through an assessment on all auto policies written in Michigan—that would fund designated investigators and prosecutors specifically assigned to auto insurance fraud (and theft) cases.

“The big thing about a fraud bureau is that you require the companies to report all the fraud,” says Peter Kuhnmuench, the Insurance Institute of Michigan’s executive director. “What that allows you to do on a comprehensive basis is identify where it’s all happening. The more data we can get, the more we can zero in on how to combat that fraud. We don’t have that knowledge now, in that it’s not a centralized reporting system in terms of one, identifying the fraud, and two, if we can identify some resources to go after it.”

IIM also proposes the state allow consumers to buy capped no-fault insurance policies. The proposal is meant to expand consumer choice (and, according to critics, save insurance companies from having to pay large claims), but Hartwig says that it could also reduce fraud.

“No one is saying that a $50,000 cap will eliminate all the problems,” says Hartwig. “But it at least caps the problems. We’re talking about in some sense picking the low-hanging fruit first, and that would be addressing the most anomalous feature of the no-fault system, which is the uncapped benefit.”

But, again, the lack of data means these proposals are not wholly embraced by those who are unconvinced that fraud is a big cost-driver in the system.

“I’d be naïve to think that there is not some fraud in the system. But I’m not aware of systemic fraud that’s going on that’s driving up the cost,” says Kevin McKinney, a legislative consultant to the Coalition Protecting Auto No-Fault, a group trying to stop what it sees as a concerted assault by the courts and the insurance industry on Michigan’s unique system.

“I have not been presented with that argument, nor the industry. I think that’s their response when policymakers or the industry look at the cause of high premiums,” says McKinney. “’Oh, it’s fraud that’s driving up the rates.’ I don’t necessarily share that opinion. I’m really kind of baffled by the claim that they’re making that there’s this huge amount of fraud.”

McKinney says that the proposed legislation outlawing running is fine; – Michigan personal injury lawyer Steven Gursten, and Kecia Milliner, an accident victim’s mother, both agree.

Each – interviewed separately – is deeply skeptical of the need for a fraud bureau, however – at least one whose mission is to investigate fraud committed by insureds rather than insurers. Gursten says that he would be less skeptical of a fraud bureau charged with investigating insurer fraud in addition to that committed by the insured and by medical providers.

“We’re programmed to think that fraud is always the plaintiff,” says Gursten. “A fraud bureau should also look at how claims are processed by insurance companies. Because if you want to talk about fraud, you should see how my clients are treated by adjusters.”

McKinney, Gursten, and Milliner are not skeptical of caps on PIP benefits. They reject them outright.

“I think it’s a horrible idea,” says McKinney. “I think what’s going to happen is the beginning of the end to the model system that Michigan has with lifetime medical benefits. It’s really a major, significant tax shift to the taxpayers because probably most people or many folks will buy the smaller coverage. They’ll burn through that $50,000 before they get out of acute care. They’ll draw down on all their assets. Then they’ll be thrown into the Medicaid system.”

McKinney may be right about people going into the government system. The Rand monograph authors found that after Colorado got rid of its no-fault system, costs were shifted from auto insurance to Medicare, Medicaid, and the victims of the accidents themselves.

The creation of a fraud bureau and implementation of anti-running laws would not bring Michigan’s system further from the old ideal, however, and it is difficult to imagine good reasons for not enacting these anti-fraud measures.

Allowing for capped PIP benefits would move Michigan’s system farther from the old ideal. And, despite a near-constant rash of “reform” bills in the Michigan legislature, it is indeed a system that some Michiganders—such as Milliner, whose daughter was hit by a car seven years ago and suffered severe brain damage that requires constant and expensive treatment—still believe in.

Milliner has been engaged in a long battle with her insurer to pay for her daughter’s treatments and therapies. She is furious that the insurer could deny payments for a time—a year, at one point—without suffering any consequences, when it turns out that the denials were wrongful.

Milliner would like to see some reforms to the Michigan system. She’d like to see laws creating penalties for insurers who wrongfully deny claims. She would not like insurers to be allowed to offer capped PIP benefits to Michigan consumers.

“That’s asinine,” says Milliner. “That’s completely asinine. You don’t know that you’re going to have a catastrophic event. People don’t know how much it costs to have therapy, how much it costs now. I would never have thought that anything like this would happen to me. I never even heard of a neuropsychological evaluation before the doctor said they are going to send her for [one]. It’s probably hundreds of thousands of dollars throughout my daughter’s lifetime. I could not even conceive it when they told me, ‘Your child will always need therapy.’ My child has a traumatic brain injury. I knew nothing about traumatic brain injury.

“A person like me would probably be like, ‘Oh, OK, let’s do the cap.’ But when something happens—that’s why it’s called an accident. That’s why you have insurance, to cover you. To me, it would defeat the purpose of having insurance, if you’re going to put a cap in there.”

Professor Jeffrey O’Connell, who co-wrote the seminal 1965 work on no-fault auto insurance and now teaches at the University of Virginia School of Law, is not so sure. The point of no-fault auto insurance was to provide quick and efficient compensation for actual damages to those injured in car accidents, he notes, but health insurance largely serves that purpose now and will do so even more extensively once individuals are required to have health insurance, when the federal government’s mandates kick in in 2014.

“More and more, there is going to be national health insurance that is going to be applicable to all,” says O’Connell. “You can’t agree to not have health insurance. That’s compulsory. So I think it makes sense to not have health benefits compulsory under the no-fault system. Even today I think it makes good sense to give people a choice. If they don’t have health insurance and they want to be covered for auto accidents for their health costs, OK, let them buy it. But for those of us who have health insurance, either supplied by our employer or bought individually, it doesn’t make sense to require us to buy it all over again for auto accidents.”

In the end, of course, the question of whether Michigan consumers will have the opportunity to purchase capped PIP policies or forgo auto insurance altogether as a way of reducing fraud and cutting premium costs is a question the state’s voters will have to decide for themselves. In past ballot initiatives, they’ve rejected capped policies.

Meanwhile, Handley is busy. He has, he says, fifty or sixty files—maybe more—moving across his desk each year. Handley would like to see fifteen more investigators join him and the part-timer currently on the prowl. In this bad economy, Handley says, he is seeing more questionable claims than before.

“It’s frustrating, because I’d like to have fifteen, twenty cops assigned to insurance fraud,” he says. “And when we take a case to law enforcement—in Michigan a prosecutor can’t take a case right from us; it has to come from law enforcement—we’ve got to train two people in health-care fraud. I was with one prosecutor the other day [and] said, ‘You’ve spent two years with this case; what do you think?’ He said, ‘I’m finally getting the hang of this.’ Put it this way: it’s guaranteed employment.”

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