Those of us who have been workers’ comp professionals for a while like to think that there are no new issues. We’ve seen it all, done it all, and have a closet full of T-shirts to prove it. Yet technology, like the proverbial new wine in an old wineskin, can break out of the boundaries created by aged statutes and old case law.

There have been some recent examples of corporate civil liability for employees who are in motor vehicle accidents while using their cell phones for business. This also raises a slightly different and thornier question: What about employees who get into accidents while off work but while making business calls on personal cell phones. Should they, too, be entitled to workers’ compensation benefits?

This issue was addressed in Virginia a few years ago in the case of Donna Turpin v. Wythe County Community Hospital.  (http://www.washingtontimes.com/news/2011/oct/9/workers-comp-case-upheld-in-cellphone-related-cras/?page=all)

Here, the claimant was a nurse who was off work, but on call, when she received a work-related phone call. While trying to answer the phone, she lost control of her vehicle and crashed, resulting in moderate injuries.

The fact that nurse Turpin was on call makes the injury arguably more compensable, and the Virginia Court of Appeals agreed. It awarded benefits even though she wasn’t technically at work.

But I have been waiting to see courts address the issue where a business professional is driving his or her car on a Saturday or Sunday, running personal errands and not on call. Then, when he receives a work-related cell phone call, he becomes distracted and is in a motor vehicle accident. Should this be compensable even though the employee is not at work and is doing personal activities?

As you may surmise, the majority of jurisdictions within the U.S. would probably find this injury to be compensable, as there is a benefit to the employer from having the employee take a business call on personal time. Under the "mutual benefit doctrine," if the employee is conducting legitimate work then the claim is compensable even if the employee is on his way to get donuts for his family.

However, if companies have a policy that prohibits the use of cell phones while driving, how do we resolve the inherent conflict between an injury arising out of work duties and an injury that occurred as the result of a violation of company policy?

Many states (but not a majority) have provisions within their workers’ compensation statute that allow for a reduction of benefits if the claimant is injured as a result of a failure to use safety devices or a failure to follow safety rules.

If you are in a state that has such provisions, this is an added reason why the company policy manual should be updated to prohibit the use of cell phones while driving. That way, even if the claim is compensable, there would still be a reduction of benefits paid.

The response to such policies is typically negative: “Why should the worker be punished when he was injured while trying to do his job?” Valid question. Here is a valid answer: incentive.

I often tell employers that safety rules and policies are not adopted to punish employees but to try to reduce injuries. Everything we do in life has risk. But any risk manager will tell you that the trick is to maximize work efficiency while minimizing (rarely eliminating) the risk. Employees should be penalized for violating safety policies, because without the concern for punishment (like having one’s comp benefits reduced or even eliminated), there is no incentive to follow the policies designed to minimize the risks faced by workers.

I drafted the hypothetical situation because: 1) It could easily happen, and 2) It demonstrates how technology blurs the line between our personal activities and our work activities.

Safety policies should be adopted to minimize risk—like a ban on driving and using cell phones at the same time. Such a policy should not only reduce the risk of injury to your employees but should also reduce the risk of increased insurance premiums.

Now, if only I could figure out a way to craft a policy that eliminated the calories in donuts, I would really be on to something.

The starting point

 “The absolute of leadership is followers.” -- Peter Drucker, management guru and author of dozens of influential books

Defining reality

“The first role of the leader is to define reality.” -- Max DePree, former CEO of Herman Miller and author of Leadership Is an Art

Verifying reality

“All the well-meaning advice in the world won’t amount to a hill of beans if you’re not addressing the real problem. And we’ll never get to the problem if we’re so caught up in our own autobiography, our own paradigm, that we don’t take off our glasses long enough to see the world from another point of view.”  -- Stephen Covey, author, 7 Habits of Highly Effective People

A shared characteristic

“All of the great leaders have had one characteristic in common: It was the willingness to confront unequivocally the major anxiety of their people in their time.” --  John Kenneth Galbraith, economist and author of dozens of books

The objective

“The task of a leader is to get people from where they are to where they have not been.” -- Henry Kissinger, secretary of state under President Richard Nixon and President Gerald Ford

The functions

“Change is the transition from today through tomorrows.” -- Mike Manes, founder, Square One Consulting

“Change management is solving problems and capitalizing on opportunities during the transition.” – Manes

“The best way to predict the future is to create it.” – Drucker

The challenge

“There is no more delicate matter to take in hand, nor more dangerous to conduct, nor more doubtful to success, than to step up as a leader in the introduction of changes. For he who innovates will have for his enemies all those well off under the existing order of things, and only lukewarm supporters in those who might be better off under the new.”  --Niccolo Machiavelli, author, The Prince

The risk in failing to lead

“Take change by the hand before change takes you by the throat.” – Winston Churchill, former prime minister of England

The importance of vision

“Where there is no vision the people perish.” – Proverbs 29:16

“People change what they do less because they are given an analysis that shifts their thinking than because they are shown a truth that influences their feelings.”– John P. Kotter and Dan S. Cohen in The Heart of Change

The best example of vision

“I believe that this nation should commit itself to achieving the goal before this decade is out, of landing a man on the moon and returning him safely to earth.”  -- President John F. Kennedy, May 25, 1961

The importance of leadership

“The only thing necessary for the triumph of evil is for good men to do nothing.” -- Edmund Burke, Irish statesman, author and philosopher

What leadership is not

“Consensus is the absence of leadership.” -- Margaret Thatcher, former prime minister of England

A bias for action

“If you start to take Vienna – Take Vienna.” -- Napoleon Bonaparte, emperor of France from 1804 to 1814

“I can accept failure, but I can’t accept not trying.” -- Michael Jordan, former NBA star

“Don’t find fault – Find a remedy.” -- Henry Ford, founder of Ford Motor

“There is no limit to what can be accomplished when no one cares who gets the credit.” -- John Wooden, UCLA coach who won 10 NCAA basketball championships in a 12-year stretch

“A man could do nothing if he waited until he could do it so well that no one would find fault with what he had done.” – Anonymous

“There are risks and costs to action. But they are far less than the long-range risks of comfortable inaction.” -- Kennedy

“Nothing in this world can take the place of perseverance. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Perseverance and determination alone are omnipotent. The slogan ‘press on’ has solved and always will solve the problems of the human race.” – President Calvin Coolidge

“Just do it!” -- Nike

The test of leadership

“If the end brings me out right, then what is said against me won’t matter. If the end brings me out wrong, then 10 angels swearing I was right would make no difference.” – President Abraham Lincoln

“It is not the critic who counts, or how the strong man stumbled and fell, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, who knows the great enthusiasms, the great devotion, and spends himself in a worthy cause; and if he fails, at least fails while daring greatly, so that he’ll never be with those cold and timid souls who know neither victory or defeat.” – President Theodore Roosevelt

“Fall down seven times, stand up eight.” -- Japanese proverb

During the presidential debate on Oct. 3, 2012, a KitchenAid employee used the corporate account to send a tasteless (some would say disparaging and grossly offensive) tweet regarding the president’s grandmother. KitchenAid quickly apologized to the president and his family and explained what happened. In other words, KitchenAid followed the “rules” of reactive reputation management.  

KitchenAid was praised for responding quickly. But the outrage about the tweet was overwhelming, if only for a short period, and underscores that companies need to consider their potential liability from ill-advised tweets.

A bit of background: Libel (written) and slander (spoken), collectively known as “defamation,” which is the general term used internationally, are civil wrongs (sometimes carrying criminal penalties) that harm a reputation, decrease respect, regard or confidence or induce disparaging, hostile or disagreeable opinions or feelings against an individual or entity. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. 

Contrary to a general belief that insulting tweets (or comments online through Facebook, online message boards, etc.)  are exempt from libel laws because they are fleeting, libel laws apply to the Internet the same way they do to newspapers, magazines, books, films, etc. The same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit.    

In considering your legal exposure if an employee may have committed libel, you must consider the country you live in, as well as your exposure to libel laws around the world.

U.S.

The medium for communication is irrelevant; even an email to a single person can be libelous if the sender knew a statement to be false, acted with reckless disregard for the facts or was otherwise irresponsible. To be libelous, the statement must also cause some damage.

United Kingdom 

The basis of British libel law is not substantially different from that in the U.S.: to protect the reputation of an individual from unjustified attack. In British law, a person is defamed if statements in a publication expose a person to hatred or ridicule, cause a person to be shunned, lower a person in the estimation in the minds of "right-thinking" members of society or disparage a person in his work. In the U.K, though, the burden of proof is with the defendant, while in the U.S. the plaintiff must provide the proof. Unlike in the U.S., there is also no provision in the U.K. that makes it harder for public figures to win a judgment--in the U.K., a public figure does not have to prove a statement was made with malice.

Almost all of the rest of the world

There is ever-expanding concern about the use of social media, especially Twitter, to post harassing, offensive and false statements that are defaming or invade another’s privacy. As one judge said: “Twitter as we all know is widely used by individuals and organizations to disseminate and receive information. It is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.” ([2012] EWHC 2157 (Admin) at {23}. In India, amendments to the Information Technology Act, 2000 (IT ACT) specify that defamation via a computer or communication can lead to a prison term of three years and a fine. (The United Nations Commission on Human Rights ruled in 2012 that the criminalization of libel violates the right to freedom of expression and  is inconsistent with Article 19 of the International Covenant on Civil and Political Rights. The impact of this ruling, if any, is not part of the discussion in this article.) 

Now, let’s consider liability if you or an employee is the “retweeter”:

U.S.

If you retweet a libelous statement in the U.S., you or the company you work for  may be protected from defamation liability based on Section 230 of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Simply put, this means you cannot be sued for something you retweet, even if the original tweet is libelous, so long as the libelous content was created by a third party. However, if you did have control (it was KitchenAid’s corporate Twitter account)  or you add something defamatory, you could be held responsible. 

United Kingdom

Keir Starmer QC was addressing the London School of Economics about social media in 2012 when he was asked: “Is it an offense to retweet something grossly offensive?" He replied: "You retweet, you commit an offense under the Act.”

The “Act” is the Communications Act, which outlaws sending a tweet that is “grossly offensive or of an indecent, obscene or menacing character.” A person can be prosecuted if he "causes any such message or matter to be so sent.”

For example: In 2012, the British Broadcasting Corporation settled a libel suit for about $300,000 with a UK politician. (The BBC reported that he was involved in a child sex abuse scandal but should have known the statement was false.) The UK politician then sought libel damages from at least 20 “high profile” people who tweeted and retweeted the report. 

Because tweets cross borders so easily, Twitter users in the U.S. and elsewhere should take the UK law into account.

India

Some legal scholars in India say that even accidentally retweeting an offensive tweet can create liability.

Freedom of Speech?

While freedom of speech in the U.S. is a constitutional right, legal exceptions make that right limited. For example: Speech that involves incitement, false statements of fact, obscenity, child pornography, threats and speech owned by others are all completely exempt from First Amendment protections. The U.S. Supreme Court has ruled that the First Amendment does not require recognition of a privilege for those stating opinions. Therefore, the  position that nothing should stand in the way of unabashed free speech on the Internet is like the ostrich with its head in the sand. Defamation and speech intended to inflict severe emotional distress is not protected.States can and do regulate this type of speech.

So here is the takeaway:

If you or an employee tweets or retweets something defamatory, you may face a libel claim. It doesn't matter how quickly you delete the entry or whether you follow up with a correction or an apology. It also doesn't matter where in the world you are.

Disclaimer: The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter hereof. Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship. The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or part of this article.

There is a $20 billion calamity on the tracks ahead, and no one seems to care. As this train hurtles ever closer to its inevitable demise, the passengers ride oblivious. A program created to protect those passengers – U.S. taxpayers -- seemingly will do anything but what was originally intended. 

Medicare Set Asides were developed with the good intentions of protecting Medicare, and the taxpayers that fund it, from unnecessarily paying for injuries and illnesses that are the prior responsibility of third parties. Quite simply, people were taking settlement money received from a general liability or workplace accident—money that was supposed to pay for future medical needs from the injury—and were spending it on anything but its intended purpose. While this was great for the bass boat and travel industries, it was a less than stellar deal for the U.S. taxpayer, who wound up paying for the injured persons’ care once they were eligible for Medicare.

Enter the MSA: a vehicle designed to protect a designated portion of settlement funds by placing them aside and requiring they be used for the purpose intended. This is not new. The roots of today’s MSA lie in the passing of the Medicare Secondary Payer Act of 1980. That act was significantly strengthened in 2003, however, and this has resulted in far more activity for the workers’ compensation industry over the past decade.

True to form, the government has not made implementation easy. Extremely detailed reporting requirements, extensive fines for the Responsible Reporting Entity (even for rules not established at the time) and a complex process made for a confusing road for employers and payers. An entire industry has sprung up to manage this process. The risks of not complying are serious, and the liability for getting it wrong is huge. The Medicare Set Aside today is integral to virtually any settlement situation in the workers’ compensation industry.

All of this is done to protect the U.S. taxpayer from Joe Sixpack and his desire for a bass boat.

I am in no way an expert on MSAs. I have, however, spent time over the last two years attending conferences and talking to various experts on the topic, trying to better understand their purpose and procedure. I discovered a singular statistic that absolutely floored me. It was a fact that, in my opinion, flies in the face of logic and makes all the burdened activity around the MSA seem pointless.

What is so shocking? Only 4% of completed MSAs are professionally administered.

The rest, 96%, are given directly to the claimant/recipient and are self-managed. That means that, when all is said and done, when the calculations are made, when the submissions and approvals are complete, the money that is set aside for the purpose of protecting Medicare and the U.S. taxpayer is given right back to Joe Sixpack, the guy we were trying to protect ourselves from in the first place.

It makes no sense. None.

I am not saying Joe Sixpack is a bad guy. I am not saying his intents are not pure. I am saying that managing payments from an MSA, making sure they are properly coded and complying with mandated reporting is difficult. The process may be well beyond the ability of an injured worker turned fund manager.

Even with his best efforts, Joe could be in trouble when Medicare starts paying for his health care. If he has not dotted every “i” and crossed every “t,” as well as made sure all expenditures were classified to show appropriate care for the affected injury, he could find himself denied needed coverage by Medicare.

And when an army of Joes are pounding at the door of Medicare, because of possible denial of coverage, something is going to have to give.

So how bad is it? What are we looking at here?

For that I turned to Ken Paradis, chairman of Ametros Financial, a company that offers professional administration of MSAs. He confirmed that my suspicions were potentially accurate and provided some very interesting – make that scary – numbers.

In 2010, the Centers for Medicare and Medicaid Services (CMS) approved $1.4 billion in MSAs. Assuming a consistent approach since 2001, the inception of the current program, we can estimate that $16.8 billion have been approved for MSAs in the past 12 years. Using a straight-line estimation, this could mean that $16.1 billion is being self-managed.

Not all MSAs are reviewed by CMS—some are set up with no input or review by the government—and these Class III MSAs represent a completely unknown addition in risk to the long-term health of Medicare. Paradis indicated from experience that 20% of MSAs may be in this category. Using the base numbers from our equation, that estimate brings the total risk pool to perhaps $20 billion.

That figure represents true risk for the nation and our industry.

It seems that many are under the impression that self-administered funds are managed with some level of competence by Joe Sixpack’s counsel. However, the existence of waiver or hold-harmless indemnification language in many settlement agreements tells a different tale. The November 2013 manual on MSAs included guidance for non-professionally administered MSAs, which tells us someone out there might need that advice.

After all the convoluted effort focused on setting up MSAs to protect the interests of Medicare, the guidelines on administration offered by CMS are surprisingly simple:

• Deposit the fund into an interest-bearing account.
• Use the fund only for the MSA settlement injury.
• Use the fund only for expenses covered by Medicare.
• Pay according to the appropriate fee schedule.
• Prepare and submit an annual account report to CMS.

The first three seem easy enough to understand. The last two, however, are where the wheels will most likely come off the bus for our wayward injured worker turned financial wizard. Fee schedule and medical classification codes are a science unto themselves, yet we expect Joe Sixpack to navigate that labyrinth with a ninja-like accounting skill set that many industry professionals themselves do not possess.

As for those detailed annual reports, anecdotal information shows CMS hasn’t actually seen many of those over the last decade or so. They, and we, are operating blind in that area.

And, as I’ve indicated, it is a damn big area.

The harsh truth is, no one knows what is out there. No one knows what is coming. We are blindly turning on faith that all this energy and effort will somehow end up doing what was intended. Trust me; this is not going to end well.

The cost of professional administration is a mere pittance when compared with the cost and complexity of setting up an MSA. It seems even smaller when we fully recognize the consequences at hand. Some in the industry are openly suggesting that the expense of professional administration could easily be offset by using it in place of the costly and slow approval process. By skipping the approval but securing the long-term health of the MSA, the greater goal of limited liability will be met. The indemnity saved by settling the case sooner would in many cases more than offset the cost of a professional manager.

Under the current scenario, the taxpayers will clearly be on the hook, but the workers' comp industry should not be foolishly complacent. There are potential clawbacks in our future, and many who think they've put these issues to bed may be again facing a call for more cash by our government.

Why the government fails to close the loop on this and secure the protection it originally intended is beyond comprehension. We are requiring the crafting of a lengthy and expensive letter, getting it reviewed, edited and approved, and then no one is putting a stamp on the envelope.

All that effort, all that expense, only to wind up where we were to begin with; with the exception of our new sense of security. Our false sense of security.

This is part of a much bigger issue: 10,000 retirees are entering the Social Security system every day. The Medicare trust fund will be broke by 2022 at its current expenditure rates, and the ability of Joe Sixpack to manage his funds has never been more critical. There is a train wreck coming, and we are all on board for the ride.  An army of angry Joes will soon be pounding on our door, and the $20 billion may be nowhere to be found.

After all the effort and fuss, I find myself wondering: Why?

The trend of acquisitions of software and data providers is continuing, but with a twist that may lay the foundation for innovation in the insurance industry. 

CoreLogic closed out 2013 with a bang by announcing its acquisition of Eqecat, a catastrophe modeling firm, on Dec. 20, adding to an already impressive list of acquisitions in the past year. CoreLogic added three real estate companies from TPG Capital Decision Insight Information Group--Marshall & Swift/Boeckh, DataQuick Information Systems and DataQuick Lender Solutions (credit and flood-services units)--further extending into the insurance data and analytics space.  

On Jan. 13, 2014, SNL Insurance, which provides a range of statutory data for insurers that links with public data, announced the acquisition of iPartners LLC, a SaaS business intelligence and analytics solution for both the property and casualty and life and annuity insurance industries. SNL says the acquisition will provide its clients a robust BI and reporting tool for operational needs.  

And Verisk Analytics, a supplier of data to insurers and banks, announced on Jan. 14 the acquisition of EagleView Technology, a provider of property images for nearly 90% of all U.S. structures. The images, based on digital aerial image capture, are analyzed to provide information to estimate property size and proximity to risks to assist in underwriting and claims assessments.

While the initial reaction might be to think of these as just another series of acquisitions, these actually point to the great possibility for change in how we access and use data in the insurance industry, a real mash-up of ideas and technology. As an industry, we are intensely dependent on data. But the data we use is fragmented across multiple organizations, accessed and paid for based on 10- to 20-year-old business/pricing models, requires significant integration and is often ineffectively used because of a lack of analytic capabilities. But these acquisitions have the potential to change this landscape.

These acquisitions and others are positioning the industry to be ready to move beyond long-held traditional offerings into “pay-by-use models” for both software (SaaS) and data (DaaS). Each offers the deepening analytics capabilities and expertise that can be used to analyze and create data from all the source data acquired, offering new data points for insurance business processes. Together, these create the opportunity to completely change the business model for data providers. This will enable the provision of new pricing, ease of access and new data based on analysis for many insurers, particularly mid-sized to small insurers, that may not have the expertise, resources or technology to do this by themselves.  

As new models emerge, the implications and the opportunities will be substantial. There could be a new wave of innovation for insurance products, business processes, markets, competition and business models. The playing field could be leveled for access to traditional and new data and information for insurers of all sizes and even for new entrants to the industry.

Who will take the first step forward in creating and offering a new model? How quickly will the innovator bring value and potential to the industry? If the traditional providers don’t, then companies outside our industry who see the strategic importance of data, cloud and new models will. Does Google come to mind? 

First impressions apply to organizations as well as individuals. Employers have a short window during which to capture the hearts and minds of a new employee. Unfortunately, too frequently the window closes… about the same time that a door opens and the disappointed, disillusioned employee walks out!

We’ve all had that new employee experience. What drew you in? What pushed you away? What did your introduction to the job telegraph to you? And what long-term effect did these early messages have on how you felt about the work? The job? Yourself?

For most of us, those first precious hours and days were dedicated to paperwork, processes and procedures. Well-meaning leaders concerned themselves with "on-boarding" and "time to productivity." Right? But all of this likely did little to bond you to the organization, excite you about the road ahead or ensure your long-term commitment.

Organizations have a great opportunity to help new workers get off to a powerful and lasting start. But they need to change their approach to welcoming new hires. Best-in-class employers who enjoy high levels of satisfaction, engagement and retention among new employees do three things differently. They:

Ensure connections: One of the primary psychological needs we bring to the workplace is the need to engage in supportive relationships. So, companies must engineer relationships consciously from the start to ensure that new employees have a ready-made network that will help them through the transition. This can be as simple as a lunch rotation and as choreographed as formal mentoring. How it happens is less important than that it happens… early in the transition.

Help others contribute quickly: Protracted training programs, extensive shadowing and elongating time to productivity – this is a recipe for disengagement. Companies should help people quickly find ways to feel competent, effective and productive. Facilitate the use of their strengths early. Identify small projects and quick wins to establish a sense of momentum. Meaningful contribution builds a sense of commitment.

Begin the career-development conversation: Invest in employees, and they’ll invest in you. Demonstrate your commitment to their futures, and you will enhance their commitment to yours. Keep the initial employment interview going by continuing to learn about the new employee’s strengths, interests and goals. Take steps from the start to clarify how the employee wants to express herself and grow… then work together to find ways to make it happen.

Onboarding for genuine, long-term results comes down to this: De-emphasize the process and paperwork that is normally the (less-than-warm) welcome to a new job. Focus on connections, contribution and career development. And watch as your new employees:

• Confirm that they made a great choice in accepting your position.
• Quickly become powerhouse contributors.
• Settle in for a long and productive career with your organization.

The adage about data, “garbage in, garbage out,” has taken on magnified importance because the volume, quality, and impact of data has reached unprecedented levels. The importance of quality data is paramount.

Companies must change business practices regarding data management or suffer financial disadvantages. Unfortunately, the people who have the power to change frequently think the issue belongs elsewhere.

Not an IT problem!

The misconception is that, if there is a data problem, it must be an IT problem. However, only senior management has the power to hold people and organizations accountable for data quality.

The following is an excerpt from an email I received recently from our IT describing one client’s data:

“There is a field for NPI number in the data feeds, but it is not often populated.  When it is populated we can definitely use that information to derive the specialty and possibly to determine the individual provider rather than the practice or facility.”

This example highlights a widespread problem in workers’ compensation data. Even though a field is available to capture a specific data element, in this case the NPI (National Provider Identification) number, it is not populated. This number is derived from medical bills, and the reason for the omission should be thoroughly investigated.

The information trail

The first place to look is upstream in the information trail, to the submitting provider or entity. Standard billing forms such as the HCFA 1500 contain a field for NPI, but it may not be filled. Second along the information hand-off line is the bill review company. Is the NPI number being captured from the bill?

If the provider is submitting the NPI, is the bill review company capturing it? Then, if the bill review company is capturing the NPI, is it included in the data set transmitted to the payer? Once the source of the problem is discovered, management must require the necessary process changes.

Management intervention

If the submitting provider is not including the data needed, in this case the NPI number, the best management intervention is refusing to pay incomplete bills. Likewise, if the bill review company or system is not capturing the data or is not passing it on to the payer, management must demand the data needed.

Seemingly trivial data omissions can lead to multiple other problems.

Another common data problem is the submitting provider or entity entering a facility, group or practice name while excluding that of the individual treating physician. Management should insist upon using the individual treating physician name and NPI number rather than the entity name only. Systems should capture all three pieces of information.

Bad data comes in many forms beyond missing data in existing fields. Other kinds of bad data include erroneous data and duplicate records. Regardless of the form and source of bad data, the challenges on the horizon are significant. The simple fact is, benefits from analytics to gain cost advantages are not accessible to those with poor data quality. 

Management owns data quality

Accurate and complete data is the only affordable and practical resource on the horizon to advance to the next levels of medical management and measureable cost control. Only management can ensure data quality.

A controversial McKinsey Report, “Agents of the Future: the Evolution of Property and Casualty Insurance Distribution,” compares the impact of the Internet on travel agents to the proliferation of online insurance websites and considers whether the local agent will disappear if he continues to do business as usual. The report says: “Local agents are not in danger of extinction, but the role they play will continue to evolve. Those who can adapt to a new set of circumstances will thrive.”

The report talks about the dangers of online commoditization to our industry. From the thousands of agents and brokers I’ve coached, I know that the enemy is not technology; it is the dominance of the insurance bid … a commodity force that must be removed as the focus of the customer experience. It must be replaced by the risk-management process — a consultative and diagnostic approach founded on risk evaluation and mitigation … strategies to protect a family and business properly with the goal of reducing claim frequency and severity.

What does this mean for the insurance industry in 2014?

Insurance producers are tired and frustrated with competing in the “commodity trap” — the 90-day insurance bidding process. They are beginning to lose confidence in themselves because they are playing a game in which they have little impact on the outcome.

Commoditization is a battle that insurance agents, brokers and carriers confront each day. It occurs when the consumer perceives little or no distinguishable difference between products, services and resources — and when price has become the primary differentiator.

Picture commoditization as a disease that is eating away at insurance producers’ knowledge, wisdom and professionalism. It is so cruel and debilitating that it is stripping away the value proposition of even the most seasoned producer by reducing professional purpose to a number.

Time for a Q&A

To determine if your agency is affected by commoditization, ask yourself these questions:

1. Are you losing your passion and purpose for the insurance business?
2. Are you able to change the consumer’s perception of you?
3. Are you angry and frustrated with the 90-day bidding process?
4. When you introduce yourself as an insurance agent at a social event, do people treat you with dignity and respect? Are you perceived as a professional, trusted adviser, like a CPA, attorney or physician, or do consumers perceive you as an order taker?
5. Is the insurance transaction, the 90-day bid, getting in the way of your ability to learn the customer’s business and its issues?

Solutions to combat commoditization

You may ask, “How can I stop being caught in this vicious game?” First, I remind you that you sell an intangible product. The less tangible, the more powerfully and persistently the judgment about the product can be shaped by packaging. You must position the package in a way to enable the consumer to change his or her perception about it.

Second, I ask you to consider three questions:

1. To what degree does the small- and middle-market consumer have the time and ability to identify exposures? (0, low, to 5, high)
2. To what degree does the typical insurance agent or broker assist his or her client with exposure identification? (0, low, to 5, high)
3. To what degree does the small- and middle-market consumer enjoy the traditional insurance bidding process? (0, low, to 5, high)

Unless you’ve scored a 15 overall, your score gives evidence that you must stand out in a crowded marketplace!

Third, you must have a means to differentiate yourself by applying a consultative process focused on the identification, measurement and mitigation of risk. My personal formula is I³ (i.e., issues, implications and interventions).

When agents or brokers apply the I³ system, they improve their professional image, income and work-life balance. They discover a renewed purpose and passion for the business.

Fourth, if you are commodity-driven and chasing the 90-day insurance bid, you are headed toward extinction. Every day, consumers come face-to-face with transactional websites or agents. The surviving insurance agents or brokers of the future will transform themselves into indispensable, remarkable, trusted risk strategists.

The industry’s evolution?

Another industry study, conducted by Forbes for Zurich in 2013, supports the importance of a consultative process. In the study, 414 U.S. executives were interviewed. The study found that the majority of executives admitted that they were worried that they lacked knowledge of how to best mitigate risk; understand the sources of risk; and develop a sufficient risk-management budget. These are the same responses I’ve heard from small- and middle-market clients for years. The only difference is that most Fortune 500 organizations have fulltime risk managers, and middle-market consumers do not.

You can fill this void and serve your clients in a new, more consultative and diagnostic way.

When you serve as a risk strategist for your clients, you offer solutions that they cannot obtain if they purchase coverage online. As a risk strategist, you advocate for your client with the goal of designing and developing enterprise risk-management strategies. In other words, you find out what keeps your clients awake at night and take these worries away.

Secrets to success

Below are seven secrets to you help you implement future success in your agency.

1. Value proposition. Summarize the reasons why a potential customer should buy your particular product or service, how it exceeds that of the competition and why it is worthy of the price she pays. Your value proposition of the future should be concise and appeal to the client’s strongest decision-making drivers. It must be an irresistible offer, an invitation that is so compelling and attractive that a customer would be out of her mind to refuse.
2. Confidence. Wherever you are in your career, display the knowledge, skill and attitude to serve as a risk strategist for your clients.
3. Criteria filter. Screen out price shoppers. Determine quickly if your prospective client meets or falls below your standards. Rather than taking a random approach to prospect research and qualification, make your approach disciplined and strategic. You know what is at risk!
4. Unique process based on I³ — issues, implications and interventions. Focus on deeply engaging the client. Develop emotional connections with your clients that transcend price and product.
5. Relational capital. Build long-lasting relationships. Understand that relationships rarely are pursued and captured. Rather, relationships are rooted in rich soil, consisting of a blend of mutual trust, respect and shared values. These relationships produce bonds and connections that enhance both parties’ opportunity to succeed.
6. Servant leadership. Connect with others and find ways to make them more successful. Make your approach about generosity, not greed. Always show credibility, integrity and authenticity. The degree by which you practice relational capital and servant leadership will be evidenced by higher hit ratios, retention, referrals and cross-sell opportunities.
7. Purpose and passion. Rediscover your purpose and passion for our industry. Love what you do, and touch your clients’ hearts.

When you begin to serve clients as a trusted risk strategist, you will climb out of the commodity trap. Using the I³ process is your best, most powerful tool to escape commoditization and thrive.

This article first appeared in Professional Insurance Agents Magazine.

Global expansion into new markets represents a powerful opportunity — especially as economic performance languishes in much of the developed world. As a result, insurance executives must regularly evaluate and refresh their strategies to identify which international markets are most likely to offer the best prospects.

As regional markets around the world become more connected and complex, however, understanding how best to optimize the balance between opportunities and risks in individual countries remains a significant challenge. Even in a world linked closer together by macroeconomic trends, mobile phones and the Internet, regulatory and cultural differences persist, and even nations that share a common border may diverge markedly when it comes to future risk.

To help executives better understand the rebalancing now taking place across the insurance landscape in rapid-growth markets, we will highlight growth opportunities in specific countries around the globe.

While once-flourishing BRIC economies Brazil and India are now expanding at a slower pace, the U.S. is rebounding, and the U.K. and the Eurozone are at last rising from their doldrums. At the same time, a cluster of emerging markets, such as Malaysia, Indonesia, Mexico and Turkey, are making regulatory changes that could produce significant opportunities.

These shifts are causing insurance executives to reassess their strategies to determine which rapid-growth markets (RGMs) represent the most attractive investment options. To help navigate this rapidly evolving landscape, EY has created a matrix that analyzes the risks and opportunities for insurance firms across 21 RGMs. Our study identifies the following RGMs as particularly attractive for insurance investment:

• Turkey offers a greater level of opportunity than any other RGM in the study but also poses substantial risks. An economic downturn cannot be ruled out. While political turmoil has cooled in recent months, tensions could return. In addition, markets for some lines of coverage are relatively mature.

• Indonesia also offers an extremely strong economic growth picture — second only to China and Vietnam in our forecasts. However, it is challenging to obtain licenses, so acquisition is the main entry route.

• China, despite a recent slowdown in growth rate, continues to boast extraordinary income growth that spurs auto and home ownership. In addition, an aging population will drive the development of the life and health markets. However, market entry remains difficult for foreign firms.

• Malaysia offers an attractive mix of demographics and strong economic growth and has become a base for the development of takaful, sharia-compliant insurance.

• Hong Kong (a special administrative region of China) ranks low for opportunity but presents less risk than any other market in our study. Hong Kong can also serve as a trade route into the rest of Asia.

• The United Arab Emirates (UAE) has become the fastest-growing insurance market among the Gulf States, with a compound annual growth rate (CAGR) of 17% over the past six years. Regulatory changes may create greater opportunity for expansion of takaful products.

Our analysis does not merely focus on markets with the highest opportunity and lowest risk but provides a more nuanced picture of the shifting landscape. Depending on a firm’s appetite for risk, a second tier of RGMs also shows considerable promise:

• Brazil remains an important opportunity, though slowing growth rates have revealed festering economic risks. Following a program of liberalization, Brazil is the most accessible of the BRICs for foreign insurance companies. Brazil’s key advantage is scale: Of the markets in our study, it has the third-largest forecast growth in insurance premiums in US dollar terms, following China and India. Moreover, record new car sales are propelling robust growth for automobile lines.

• South Africa follows Brazil with the fourth-largest absolute growth in insurance premiums. In addition to scale, South Africa may be a good trade route into sub-Saharan Africa, as South African companies have been among the most successful in penetrating other African markets.

• Vietnam has become one of the most exciting RGM opportunities. Its income growth and premium growth rates (when considered in percentage terms) place it among the top two markets we assessed. But investors face significant corruption and sovereign risks when entering Vietnam.

• Mexico has undergone a program of extensive liberalization, opening its market to foreign insurers. On some measures, Mexico is the most open insurance market in our study. Yet the pace and unpredictability of regulatory change can be risky for investors.

• India’s opportunity is impossible to ignore, given that it is second only to China in terms of absolute forecast growth in insurance premiums. Yet, the regulatory environment has proved extremely challenging for investors. In addition, a large current-account deficit and reliance on portfolio capital inflows elevate liquidity risks.

Our analysis suggests that while investment in RGMs will continue to be vital for global insurance firms, outsized returns will not come easily. Companies that carefully tailor products and develop market-entry strategies suited to particular economies and their cultures will see the greatest rewards.

Key factors influencing market selection

When investing in RGMs, insurance executives will want to carefully consider four important waves of change:

1. The speed of regulatory change.

Some RGMs, such as South Africa and Mexico, are moving quickly to adopt new insurance regulations and may surpass advanced economies in the stringency of their risk-based regulation or consumer-protection requirements.

2. Customer adoption of insurance products.

The rise of social media and the growing popularity of overseas educational experiences are among the forces breaking down traditional barriers to insurance penetration. Many markets where traditional cultures tended to limit adoption of insurance products, such as Vietnam and Saudi Arabia, are now experiencing rapid premium growth.

3. Government fiscal policy.

Offering tax incentives for insurance products can significantly affect how customers choose savings and pension services. At the same time, a lack of confidence in public pension and welfare schemes can encourage adoption of private insurance alternatives.

4. Government attitude.

In most RGMs, the government considers the insurance sector strategic. This is in part because of the crucial role insurance plays in facilitating savings, investment and entrepreneurship. Understanding the government’s goals for the sector’s long-term development is therefore crucial. Some governments will focus on the potential growth benefits of insurance development and seek as much foreign expertise as possible in developing the insurance sector. Others will wish to have the insurance market dominated by domestic companies over the long term.

Download the full report here: Waves of change: the shifting insurance landscape in rapid-growth markets