Tag Archives: act

What Will Trump Mean for State Regulation?

Insurance is regulated by states, and the states’ laws are implemented and administered by state insurance commissioners. This was affirmed in 1945 by the McCarran-Ferguson Act. Under that act, states regulate the business of insurance unless the U.S. Congress decides otherwise. In the past six years, the federal government has with regularity encroached on areas previously controlled solely by state insurance commissioners, such as through the following federal actions:

  • The creation by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) of the Federal Insurance Office (FIO)
  • Dodd-Frank’s creation of the Financial Stability Oversight Council (FSOC)
  • The Affordable Care Act (ACA)
  • The Department of Labor (DOL) fiduciary rule issued April 8, 2016

These federal encroachments have led to regulatory confusion. Although state insurance commissioners are the predominant regulator of licensed insurance carriers and producers, insurance companies that are deemed systemically important non-bank financial institutions are supervised both by the Federal Reserve and by their domestic state insurance regulators. This creates significant duplication and regulatory burden; the cost of that burden – as well as some of the confusion — is ultimately passed on to consumers. Under the ACA, for instance, state insurance regulators routinely must react to hundreds of pages of regulations that are published by the Centers for Medicare and Medicaid Services. Licensed insurance producers and carriers must overhaul their operations and distribution to comply with the 1,023-page DOL fiduciary rule.

See also: What Trump Means for Business  

As I see it, state legislatures have given state insurance regulators dual mandates: (1) to protect consumers from the moment of purchase through filing a claim and ultimately the payment or denial of that claim; and (2) to ensure companies are solvent and can meet their financial obligations to consumers. While insurance regulators at the state level can always improve, I do believe that collectively we do a commendable job. Insurance company failures are rare, and most states respond to consumer complaints in a very timely fashion.

Under a President Trump, I believe the role of state insurance regulators will grow as some federal regulations are eliminated. If Dodd-Frank is reviewed, the role of the FIO and even the FSOC could change. State regulators have argued tirelessly that the FIO is not a regulator and needs to stay in its lane as authorized under Dodd-Frank. State regulators are debating with the FIO the need for a covered agreement on reinsurance collateral and are worried about state law being preempted. I think that, under a Trump administration, state regulators may be listened to much more in this debate. State commissioners and the FSOC representatives with insurance experience have also worked to ensure that the FSOC recognize that insurance is not banking and that traditional insurance is not systemic to the global financial system. A Trump administration may agree with state insurance regulators on these issues and many more. Only time will tell, of course.

State insurance commissioners need to demonstrate through the execution of states’ dual mandates that we deserve the responsibility of supervising the insurance markets in our respective states and that we do it better than it could be done from the federal level. I believe the time for state insurance commissioners to shine is now, and I hope we all continue to deliver results as our roles as the regulators of insurance carriers and producers and as the protectors of consumers become increasingly important.

See also: What Trump Means for Workplace Wellness  

2 Key Tools for Innovation in P&C

Imagine this: two separate kingdoms, the kingdom of P&C insurers and the kingdom of agencies and brokers. Within each kingdom, each insurer and agency is represented by its own little house, and every little house has a door. Each door can open both ways and represents a way to communicate and share data – and these kingdoms need to share lots of data.

The only way to send data between houses is to build deep trenches. Building a trench is difficult, expensive and time-consuming. And the P&C insurer must dig the trench to each agent or broker, then knock on every agency’s and broker’s door to see if they will open it and allow data to be shared.

In the world I have described, insurers are very busy building these trenches to the agencies and brokers. Insurers spend a great deal of time, money and resources. Yet, when the insurers finally get to knocking on all the doors, they find that some agencies have their doors wide open and are ready; that some will open their doors eventually; but that others have no desire to ever open their doors.

What’s more, many insurers won’t fund the trench digging, so agencies may want a connection but are left without the trench.

For the kingdoms of the insurers and of the agents and brokers, the system is not built for success.

What I just described is reality. Insurers and agencies have to share data for policies, billing and claims. But the cost, risk and payback are deterrents. Even the will to communicate is not always there.

The formalities and costs to share data are what I described as trenches. Missing or incomplete “trenches” result in missed opportunities, inefficiencies, misinformation and misunderstandings. For example, what an insurer might view as a small book of business not worth investment might be a huge book for some agencies. Sometimes, the lack of understanding between the two “kingdoms” can be astounding.

Yet we continue to go down this path, just as we have for many, many years.

We have an opportunity to rethink our situation. Two key tools of innovation can bridge the gap between insurers and agents: ideation and crowd sourcing. These may sound like buzz words, but, by allowing varied groups to have a voice in solving challenges, ideation and crowd sourcing can allow decision makers to see data trends across segments of organizations. More importantly, ideation and crowd sourcing can offer solutions to challenges for little to no investment through the ideas of people who wouldn’t otherwise necessarily have “a seat at the table.”

We know what we hear from agents: that, as we described in the “two kingdoms,” sometimes there are agent houses with no trenches even being built to them. We also know that insurers sometimes find that, even after all the work of establishing trenches, some agents keep their doors closed. Utilizing innovation tools to communicate these pain points and search for a better method of business is a great step forward.

But what can insurers do right now to solve the challenge of the two kingdoms?

In the short term, insurers can demand that all leading vendors of agency management systems and policy administration, billing and claims management systems have adapters built in and ready for plug and play for all lines of business and transactions. This would improve implementation time, reduce investments and essentially remove the “closed doors” problem facing insurers.

In the long term, invest in ideation and crowd sourcing to redesign the connections between insurers and agencies. Listen to the pain points and notice trends. Crowd sourcing will offer powerful data to build a better system. Start posing questions to your own organization like, “How do we leverage the cloud and big data concept to rethink the 40-year-old point-to-point integrations?”

You’ll be surprised at the results and how meaningful making small changes can be. Let’s do it.

Inoculating Your Wellness Program Against the EEOC

Two months ago, a posting appeared in this column titled: Are Obamacare Wellness Programs Soon to be Outlawed? Truthfully, that headline was picked for its sky-is-falling value, treating one EEOC lawsuit against one wacky wellness program as a risk for wellness programs everywhere.

As luck would have it, the sky just fell yesterday — right on the head of Honeywell — and the EEOC is indicating more lawsuits are to come.

The scary part: Unlike the wacky wellness program described in the column two months ago, Honeywell was in compliance with the Affordable Care Act. Compliance with the ACA doesn’t seem to get you a free pass on the EEOC’s own “business necessity” requirement. Essentially, the Honeywell lawsuit means no company doing invasive biometric screenings and mandating doctor visits or measuring health outcomes is immune to prosecution, even if it is in compliance with ACA.

The even scarier part: The EEOC is correct that, as this column has noted for almost two years now, wellness programs mandating overscreening and annual checkups have no business necessity. In fact, these “employer playing doctor” programs can harm employees, because:

  • A workplace screen can find heart attacks… but at the cost of a million dollars apiece, when emotionally draining false positives and potentially hazardous overtreatment are taken into account;
  • The Journal of the American Medical Association recommends against mandatory checkups;
  • An embargoed, peer-reviewed article that will be published soon in a major journal concludes that the costs and unintended health hazards of weight control programs generally overwhelm the benefits.

Companies could still claim business necessity if, indeed, these programs save money despite the harm to employees. (OSHA might raise issues, but those are hypothetical whereas EEOC is an elephant in the room.) And a few of you might ask: “Didn’t Seth Serxner of Optum and Ron Goetzel of Truven just write a journal article and show a webinar saying: ‘The overwhelming majority of published studies show positive results’?”

Unfortunately, those “positive results” — as is well-known to the presenters, who, after all, have access to the Internet — fail any sniff test.

These two true believers continue to cite Professor Katherine Baicker even though she has stepped back three times from her old (2009) conclusion that wellness provided a significant return on investment (ROI), including a “no comment” to ITL’s own Paul Carroll. More recently, she has, with great justification, blamed overzealous readers for selectively interpreting her findings. Goetzel also continues to cite the state of Nebraska, which his committee gave an award to as a “best practice” despite the revelations that the state’s vendor lied about saving the lives of cancer victims and that the vendor also paid off his award committee with a sponsorship. Likewise, Goetzel’s misinterpretation of a RAND study has drawn a rebuke from the author of the study, in a coming letter to the editor. [Editor’s Note: ITL emailed a link to this article to the press offices at both Truven and Optum on Oct. 30 offering them a chance to respond to the author’s allegations. Both were told that they could either comment at length in this article or could write separate articles that would lay out their position and that ITL would publish. Neither company has yet responded.]

Clearly, the EEOC is on to something about a lack of business necessity, when even the alleged best-and-brightest wellness defenders are forced to rely on misstatements and half-truths. Not to mention selective omissions — the presentation’s extensive section on “critics” had no mention of me, despite a recent cover story citing me as the field’s leading critic, because both these two presenters know my math is irrefutable. These industry defenders also have spotty memories, as when they claim that it is valid to compare the performance of active, willing participants against a control group of unmotivated non-participants and dropouts — forgetting that they gave out a Koop Award to one of their sponsors who showed exactly the reverse.

Inoculating Your Programs

A problem with the EEOC does not have to happen to you or your clients (if you are a broker). Taking three steps — the first of which is free and the second of which costs only in the four figures — essentially guarantees that you will not end up on the hot seat with Honeywell.

First, sign and adhere to the Workplace Wellness Code of Conduct.  This will allow you and any clients to focus your own efforts on avoiding employee harm and creating a framework for business necessity. This document is provided gratis for ITL readers, from the author.

Second, employers who sign this and get at least one vendor/carrier to sign and implement its counterpart, the Workplace Wellness Vendor Code of Conduct, can have their own outcomes validated by the GE-Intel Validation Institute (itself the subject of a forthcoming ITL posting), to create an audit trail that, in fact, outcomes are being measured.

Third, I personally — along with colleagues — will do an in-depth  walkthrough to see if, indeed, your wellness program complies with U.S. Preventive Services Task Force guidelines. If not, we will provide a list of next steps to get into compliance.

The inoculation? A six-figure guarantee that you (or your client, if you’re a broker) will not be the subject of a successful EEOC lawsuit. Besides providing some protection on its own, this level of financial commitment may create a self-fulfilling prophecy. Your actions will be a pretty convincing piece of evidence that business necessity and employee health are the goals, as measured by an objective and qualified third party.

Yes, I know it’s not always about me; you can protect yourself in other ways. My ex was quite clear on the subject of whether it’s always about me.

However, in this case, my ex would seem to be wrong. It appears that every screening vendor, every alleged wellness expert and most of those in large benefits consulting firms have done just the opposite of what I’m suggesting: They have proposed massive wellness programs with hefty financial incentives or penalties that get companies into fine messes like Honeywell’s. But, in case I’m wrong, I welcome names, websites and contact information of other consultants taking the same approach that I am. Please note them in the comments boxes below.  All will be published.