Section 16. The comptroller, in consultation with the secretary of administration and finance and the attorney general, shall administer the Liability Management and Reduction Fund established in section 2TT of chapter 29. The comptroller may appoint a liability manager of said fund whose compensation shall be paid out of said fund. The comptroller shall have the following powers and duties with respect to the fund:
(a) to use amounts in the fund to make payments or to purchase insurance coverage to make payments for the purposes set forth in said section 2TT of said chapter 29; provided, however, that any insurance coverage so purchased shall recognize and preserve the commonwealth's constitutional, statutory and common law rights, defenses, immunities and control including, without limitation, chapters 12 and 258;
(b) to determine a deductible amount, which an agency shall be directly responsible for making payment relative to a claim arising under said chapter 258 and which deductible shall be excluded from the computation of the premiums subsequently charged to such agency;
(c) to determine and assess not later than October 1 annually the premium amounts to be charged to each state agency; provided, however, that:
(1) premiums shall be set and adjusted based on factors including, but not limited to:
(A) a 5-year experience rating reflecting, without limitation, liability incurred by reasons of judgments, settlements and litigation costs for tort claims under said chapter 258;
(B) minimum-estimated-liability amounts for pending claims as to which presentment has been made under said chapter 258;
(C) the record of the agency regarding safety or other training programs designed to reduce litigation or to detect and defend against frivolous or insubstantial claims; and
(D) any extraordinary factors warranting an adjustment in the discretion of the comptroller;
(2) any disputes between agencies relative to their respective proportions of responsibility for any resolved or pending claim or disputes relative to the valuation or the appropriate nature of such claims shall be determined by the comptroller, in consultation with the attorney general; and
(3) the comptroller may pay rebates to agencies that reduce their resolved and pending claims totals below expected levels in a fiscal year and may assess surcharges on agencies experiencing unexpectedly high resolved and pending claims totals in a fiscal year; and
(d) to make such other expenditures from the fund as are necessary, appropriate and reasonable for management and administration of the fund, including personnel costs; provided, however, that all direct and indirect costs for such employees shall be paid from the fund; and provided further, that the fund shall not be used directly or indirectly for the compensation of attorneys representing the commonwealth or its officers or employees.
The comptroller shall promulgate rules and regulations to effectuate the purposes of the fund including, but not limited to, the manner in which each agency shall be assessed a premium.
Documents indicating the estimated value of a particular pending claim shall not be public records and shall not be discoverable or admissible in evidence in any action.