Tag Archives: investigation

Rethinking the Claims Value Chain

As a claims advisor, I specialize in helping to optimize property casualty claims management operations, so I spend a lot of time thinking about claims business processes, activities, dependencies and the value chains that are commonly used to structure and refine them. Lately, I have been focusing on the claims management supply chain — the vendors who provide products and perform services that are critical inputs into the claims management and fulfillment process.

In a traditional manufacturing model, the supply chain and the value chain are typically separate and — the supply chain provides raw materials, and the value chain connects activities that transform the raw materials into something valuable to customers. In a claims service delivery model, the value chain and the supply chain are increasingly overlapping, to the point where it is becoming hard to argue that any component of the claims value chain couldn’t be handled directly by the supply chain network.

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Which creates an intriguing possibility for an insurance company — an alternative to bricks and mortar and company cars and salaries, a virtual claims operation! Of course, there are third-party administrators (TPAs) that are large and well-developed enough to offer complete, end-to-end claims management and fulfillment services to an insurance company through an outsourced arrangement. That would be the one-stop shopping solution: hiring a TPA to replace your claims operation. But try to envision an end-to-end process in which you invite vendors/partners/service providers to compete to handle each component in your claims value chain (including processing handoffs to each other.) You select the best, negotiate attractive rates, lock in service guarantees and manage the whole process simply by monitoring a performance dashboard that displays real time data on effectiveness, efficiency, data quality, regulatory compliance and customer satisfaction.

You would need a system to integrate the inputs from the different suppliers to feed the dashboard, and you would also need to make certain the suppliers all worked together well enough to provide the ultimate customer with a seamless, pain free experience, but you are probably already doing some of that if you use vendors. You would still want to do quality and compliance and leakage audits, of course, but you could always hire a different vendor to do that for you or keep a small team to do it yourself.

Your unallocated loss adjustment expenses (ULAE) would become variable, tied directly to claim volume, and your main operating challenge would be to manage your supply/value chain to produce the most desirable cost and experience outcomes. Improved cycle time, efficiency, effectiveness, data accuracy and the quality of the customer experience would be your value propositions. You could even monitor the dashboard from your beach house or boat — no more staff meetings, performance reviews, training sessions — and intervene only when needed in response to pre-defined operational exceptions.

Sounds like a no-brainer. Insurance companies have been outsourcing portions of their value chain to vendors for years, so why haven’t they made their claims operations virtual?

If you are running an insurance company claims operation, you probably know why. Many (probably most) claims executives are proud of and comfortable with their claims operations just the way they are. They believe they are performing their value chain processes more effectively than anyone else could, or that their processes are “core” (so critical or so closely related to their value proposition they cannot be performed by anyone else) and thus sacrosanct, or that they have already achieved an optimal balance between in-house and outsourced services so they don’t need to push it any further. Others don’t like the loss of control associated with outsourcing, or they don’t want to consider disruptive change. Still others think it might be worth exploring, but they don’t believe they can make a successful business case for the investment in systems and change costs. Unfortunately, this may help explain why claims executives are often accused of being stubbornly change averse and overly comfortable with the status quo, but I think it is a bit more complicated than that — it all begins with the figurative “goggles” we use to self-evaluate claims operations.

If you are running a claims operation, you have an entire collection of evaluation goggles — the more claims experience you have, the larger your collection. When you have your “experience” goggles on, you compare your operation to others you have read about, or seen in prior jobs, or at competitors, to make sure your activities and results benchmark well and that you are staying up to date with best practices. At least once a year, someone outside of claims probably demands that you put your “budget” goggles on o look for opportunities to reduce ULAE costs. or legal costs, or fines and penalties, or whatever. You probably look through your “customer satisfaction” goggles quite a bit, particularly when complaints are up, or you are getting bad press because of your CAT response, or a satisfaction survey has come out and you don’t look good. Your “stakeholder” goggles help you assess how successful you have been at identifying those who have a vested interest in how well you perform, determining what it is they need from you to succeed, and delivering it. You use your “legal and regulatory compliance” goggles to identify problems before they turn into fines, bad publicity or litigation, much as you use your “no surprises” goggles to continually scan for operational breakdowns that might cause reputational or financial pain, finger pointing and second guessing. Then there are the goggles for “management” — litigation, disability, medical, vendor — and for “fraud mitigation” and “recovery” and “employee engagement.” Let’s not forget the “efficiency” goggles, which help you assess unit costs and productivity, and the “effectiveness” and “quality control” goggles, which permit you to see whether your processes are producing intended and expected results. And of course your “loss cost management” goggles give you a good read on how well you are managing all three components of your loss cost triangle, i.e., whether you are deploying and incurring the most effective combination of allocated and unallocated expenses to produce the most appropriate level of loss payments.

Are all those goggles necessary? You bet. Claims management involves complex processes and inputs and a convoluted web of variables and dependencies and contingencies. Most claims executives would probably agree it makes sense to regularly evaluate a claims operation from many different angles to get a good read on what’s working well , what isn’t and where there is opportunity for improvement. The multiple perspectives provided by your goggles help you triangulate causes, understand dependencies and impacts and intelligently balance operations to produce the best outcomes. So even if you do have a strong bias that your organization design is world-class, your people are the best and all processes and outcomes are optimal, the evaluation should give you plenty of evidence-based information with which to test that bias and identify enhancement opportunities — as long as you keep an open mind.

No matter what you do, however, there will always be others in your organization who enjoy evaluating your claims operation, and they usually aren’t encumbered by such an extensive collection of goggles. They may have only one set that is tuned to budget, or customer experience, or compliance, or they may be under the influence of consultants whose expensive goggles are tuned to detect opportunities for large-scale disruptive/destructive process innovation or transformation in your operation. On the basis of that narrow view, they just might conclude that things need to change, that new operating models need to be explored. Whether you agree or disagree, your evidence-based information should be of some value in framing and joining the debate.

Will we ever see virtual claims operations? Sure. There are many specialized claims service providers operating in the marketplace right now that can perform claims value chain processes faster, cheaper and better than many insurance companies can perform them. The technology exists to integrate multiple provider data inputs and create a performance dashboard. And there are a few large insurance company claims organizations pursuing this angle vigorously right now. I fully expect the companies that rethink and retool their claims value chains to take full advantage of integration of supply chain capabilities and begin to generate improved performance metrics and claim outcomes, ultimately creating competitive advantage for themselves. Does that mean it is time for you to rethink your claims value chain? I think the best way to find out is to put on your “innovation” goggles and take a look!

Is Controlling Workers' Comp Costs Really the Answer?

The agendas of all the big workers' compensation seminars agree. Controlling costs is the biggest and most pressing issue. Some might say it's the only issue. But I wonder if this emphasis isn't counterproductive….

The regulatory side

From a regulator's point of view, cost control is accomplished by imposing restrictions, by establishing fee and treatment schedules and, occasionally, by providing incentives that encourage the desired behavior. At bottom, the basis of regulation is distrust.

Controls are generally set to make everyone play by a single set of rules that allow the illusion of predictability and fairness.

I say “the illusion” because a clear understanding of the most common style of regulation shows a dysfunctional relationship. The regulator issues a regulation controlling, say, billing by physical therapists. The physical therapists will always collectively understand their business better than the regulator and will soon find a way to “work around” any portion of the regulations that they find objectionable. The regulator will eventually become aware of the “hole” in the regulations. The regulator will then move to reassert control by tightening the regulations, only to start the cycle all over again. 

In the meantime, the regulator comes to believe that the stakeholders (physical therapists in this example) cannot be trusted. The stakeholders have to be ever more closely controlled. When that fails, it “must be” because those pesky PTs are trying to make excess profits; the belief that they are self-serving becomes entrenched. Multiply this phenomenon by all of the various groups of stakeholders and service providers, and you see the atmosphere of “us against them” that is all too common in regulatory circles.

The trouble with this pattern for controlling costs is that it really is a cost driver. Every time the regulations change, two things happen. 

First, the change itself is costly. Computer programs have to be changed. People have to be retrained. Time that used to be spent doing the work of the industry is spent doing the work of the regulator. At the end of the day, the passive-aggressive resistance of the industry will win, and the cost of cost controls will outweigh the savings.

Second, the services to the injured get constrained by the cost controls, and the ability to provide individualized services suffers. One size does not fit all in injury management, and attempts to make it so usually end up fitting virtually no one.

The claims side

When the claims payer tries to impose control costs, the result is a different kind of cost driver. Once again, the whole system is based upon distrust. The claim must be investigated before it is accepted –even though only about one in 20 of the claims reported for suspected worker fraud justifies a finding of illegal behavior.[i1] Rehabilitative services that the research clearly shows are most effective if provided within the first days of the claim are delayed because this claim just might be the one in 20 (or worse, in a cynical attempt to save money by getting the injured worker with a legitimate claim to “just go away.”) Unfortunately, the delay of necessary services makes the claim more likely to become complex, more likely to attract the ungentle ministrations of the lawyers[ii], and less likely to resolve uneventfully.

Not only does the delay hurt, but the process of investigating the claim creates its own opportunities for adverse outcomes. Investigation is a statement of distrust. Tell the worker that you question whether she is really as hurt as she claims, and the natural reaction is to push back and try to prove that the injury really is severe. Sometimes, in that process, workers become attached to the belief in the seriousness of their injury, with unfortunate results.

Medicalization of the claim often occurs in the process of seeking a diagnosis. The diagnosis is not necessary for treatment of the injury in many cases – conservative care for, say, lower back pain is the same for the first few weeks whether it has a diagnosis or is just unspecified pain. Yet, because of the payer's distrust of the claim, we routinely get a diagnosis even though that risks losing control of the claim. 

Once the claim has been accepted, the scrutiny and distrust continue, again in the name of cost control. Adjusters and third-party payers have to justify their work, so claims are scrutinized. Frustration, delay and anger may be created in another self-perpetuating cycle of distrust.  

The outcomes of this dysfunction are often visited on the injured worker, in the form of reduced or curtailed injury management and lack of time for patient education that has proven value in durable recovery. 

We fail to realize that many cases of failure to recover as anticipated are caused by distrust, expressed in the system as cost-control measures. Moreover, the evidence is overwhelming that claims with unexplained failure to recover make up a large percentage of the 20% of claims that result in 80% of our loss costs. We might save a few dollars on some claims with our cost-control scrutiny, but at the risk of creating unnecessary complex, long-tail claims. We also risk pushing some of the cases into becoming one of those relatively rare cases of genuine misconduct, as people try to make the system work for them, in any way they can.

So, where are the savings?

A way forward

There are many other ways that cost controls actually become inadvertent cost drivers in the system. I'm not going to belabor the point further, because the important take-away is that an alternative exists. If 20% of claims create 80% of costs, then any efforts to prevent claims from falling into that 20% are heavily leveraged in their cost-savings impact.

If we want durable and sustainable cost control, the first step is to understand the dynamics that allow some people to recover and thrive while others with similar injuries spiral down to despair and dependency. While there isn't the space to discuss that topic here[iii], a better understanding about what helps injured people to avoid becoming “disabled” almost certainly leads to real and sustainable cost savings. And the distrust that currently permeates our systems isn't any part of it.

We created our situation, so we ought to be able to control it. Einstein said: “Any intelligent fool can make things bigger, more complex and more violent. It takes a touch of genius – and a lot of courage – to move in the opposite direction.” Our current fixation on cost controls certainly makes the system more complex and full of new players eagerly selling us the latest magic bullet. The understanding to move us in the opposite direction also exists, if we can find the internal fortitude to use it.


[i1] The 5% average comes from presentations at the National Workers' Compensation College, International Association of Industrial Accident Boards and Commissions, 2004-2006, and from the author's own personal observation while supervising the New Mexico Workers' Compensation Administration fraud investigation unit over the course of five years.

[ii] See Aurbach, R.  “Suppose Hippocrates had been a Lawyer,” Psychological Injury and Law, Volume 6, pages 215-237, 2013.

[iii] See Aurbach, R. “Breaking the Web of Needless Disability” Work: A Journal of Prevention, Assessment and Rehabilitation, http://iospress.metapress.com/content/y50n1479vj054364/?p=7d6ab3539cd840bea6e14dbe8f2874dd&pi=0

The Right Way to Handle Employee Complaints

California employers have a legal duty to respond to certain employee complaints.  Failure to respond or failure to respond appropriately can result in significant liability.  This is particularly true with complaints of harassment, discrimination and other unlawful conduct.  Accordingly, employers should never take employee complaints lightly.  Even if no legal duty to investigate exists, a well-managed response can minimize or even eliminate problems and improve employee morale.

Achieving the well-managed response is not easy.  It takes careful planning and execution.  Fortunately, most employers do a very good job of managing their employees, and complaints are infrequent.  Unfortunately, this means most employers have little experience at managing the complaint process.  Being aware of and strategically planning at each step of the process can help make up for the lack of experience.

Here’s how you do it:

Receipt of the Complaint

How an employee complaint is received can be critically important.  If the employer has not created a culture of trust and respect, employees will not be comfortable coming to management with complaints.  That may mean fewer complaints but will also mean bigger problems — employees are not required to complain to the employer before filing a lawsuit.  Consistent with the culture of trust and respect, the manager receiving a complaint should express an interest in and concern for the employee making the complaint.  Remember, the employee is not happy about something.  A closed-minded, uncaring demeanor during the first contact will only make the unhappiness grow.

It is also very important to be aware of and address the complaining employee’s expectations.  If the employee requests that the complaint be kept confidential, the manager must be able to explain why it cannot be kept completely confidential and must be able to do so in a way that does not alienate the employee.  The manager should also address the employee’s expectations for the process and the result.  Obviously, it is too early for the manager to make promises about the result, but he can help build confidence in the fairness of the process.

Act Immediately

Once a complaint is received, the employer should act immediately.  Any delay in taking action on an employee complaint will be magnified tenfold in litigation, and the employer will have a very difficult time overcoming the perception that the complaint was dismissed as unimportant.

Conduct an Investigation

Every employee complaint warrants an investigation.  That does not mean that every complaint requires a lengthy, formal process conducted by professional investigators.  The investigation might be as simple as asking the employee a few questions.  Regardless of its scale, the investigation’s purpose remains the same: to get an accurate understanding of the facts.  Only with a solid understanding of the facts can the employer make an informed decision on the complaint.

As an initial matter, the employer must determine who will conduct the investigation.  Will it be conducted by a single individual or several people working in coordination?  Will it be conducted by the employer’s own staff or by an outside investigator?  In either case, the employer should consider the following factors:

  • The nature and seriousness of the complaint.  Complaints about the speed of the copy equipment do not warrant the same level of investigation as complaints about sexual harassment.
  • The skill and experience of the investigator.  Whether an employee or outside professional, the investigator should understand how to conduct a good investigation and have the skill to do it.  In some cases, an internal investigation is preferred.  If the employer does not have a skilled investigator on staff, the employer should hire an expert to guide and coach the employee conducting the investigation.
  • The investigator’s neutrality regarding the facts and witnesses.  Any bias, real or perceived, can render the investigation useless.
  • The investigator’s quality as a witness.  The investigator may well be a key witness in future litigation.  The ability to speak well and inspire confidence is essential in that arena.  It is equally important in giving the complaining employee and witnesses confidence in the investigative process.
  • The outside professional’s qualification.  California law requires outside investigators to be either a licensed private investigator or an attorney.
  • Whether creating a legal privilege around the investigation is important.  If it is, the investigation must be conducted by an attorney and conducted in a manner that maintains the privilege.
  • The scope of the investigation.  The investigator should find the facts and assess the credibility of the witnesses and information obtained.  The investigator should not make legal conclusions or suggestions on what actions to take, even if he is an attorney.

It is important to understand that the investigator or investigators cannot follow a set formula or pattern in every investigation and expect success.  A specific and strategic plan is always advised.  The plan will include consideration of who will investigate, who will investigate which parts, what order witnesses will be interviewed in, where they will be interviewed, what kind of record will be created and who will be responsible for communications.   As important as it is to have a strategic plan, it is even more important to not follow it blindly.  As facts are uncovered and circumstances change, the plan may need to be adjusted.  By definition, a good investigation will be flexible enough to ensure that all of the relevant facts are uncovered with a minimum of collateral damage.

Review the Investigation and Respond

The employer bears the ultimate responsibility for responding to the complaint.  Doing so appropriately requires a clear and complete understanding of the facts.  If the employer is uncertain about any facts contained in the investigator’s report, they should be clarified.  If the employer is not confident that the investigation was thorough, further investigation should be ordered.  With all the facts and confidence in them, the employer will decide what actions to take on the complaint.  This is the point where an employer should be interested in legal conclusions, particularly if the complaint is serious.  The deliberations about what actions to take and why should be protected against disclosure.  Often, it is advisable to have such deliberations protected by the attorney-client privilege.

While the deliberations may be secret, the decisions resulting from them are not. They will need to be communicated to the complaining employee and other interested employees and communicated effectively.  Once again, a strategic plan is critical.  How something is communicated is often as powerful as the content of the communication.   The effort put into the investigation and the problem-solving potential of the complaint process can all be lost by careless final communications.

Employers cannot escape the duty to investigate employee complaints.  Nor should they want to.  Employee complaints can be healthy for an organization.  They can uncover problems before they cause significant damage.  They can also be a vehicle for increased employee morale and productivity.  But the positive aspects surrounding employee complaints can only be achieved with a properly handled complaint process.

Can Employers Ever Monitor Employees' Personal Social Media?

Yes, but be careful! There is no denying that the use of social media sites such as Facebook, Twitter and LinkedIn has exploded. The explosion includes both personal and business use of social media. It also includes use that is beneficial to employers and use that can be very damaging. Unfortunately, the influx of employment lawsuits that have followed the explosion have had limited practical value in guiding employees and employers on the permissible use and oversight of social media in the workplace. While many questions remain, the California State Legislature's recent enactment regulating employer use of social media does provide some guidance.

California Labor Code section 980 was enacted to prevent employers from (1) requesting an employee disclose usernames or passwords for personal social media accounts; (2) requiring an employee to access his or her personal social media in the presence of the employer; or (3) requiring an employee to divulge any personal social media to the employer. Applicants are protected in the same way as employees. The new statute, coupled with existing privacy laws, limits what employers may monitor when it comes to the personal social media of employees and applicants.

Definition Of Social Media
In what appears to be an effort to account for the ever increasing development of new social media, the new statute broadly defines social media as an “electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online services or accounts, or internet web site profiles or locations.”

Prohibitions On Employers Monitoring Social Media
Employers may not require, or even request, that an employee or applicant:

  • Disclose a username or password for the purpose of gaining access to the employee or applicant's personal social media;
  • Access their personal social media in the employer's presence; or
  • Divulge any personal social media.

Employers are also prohibited from retaliating or threatening to retaliate against an employee or applicant who refuses to comply with a request or demand that violates the statute.

Despite the statute's broad definition of social media and its restrictive prohibitions on employers, it does provide some exceptions under which employers may request and gain access to employees' personal social media. For each exception, however, pitfalls exist. Employers need to know them in order to avoid costly mistakes.

Accessing Social Media As Part Of An Investigation
The statute does not affect an employer's existing rights to obtain personal social media “reasonably believed to be relevant” to an investigation of employee misconduct. Under this exception, the employer may only access the employee's personal social media under the condition that it is used strictly for purposes of the investigation or a related proceeding. While the statute does not define what “reasonably believed to be relevant” means, California Courts evaluate employee privacy concerns utilizing a balancing test, weighing the employee's reasonable expectation of privacy against the employer's legitimate business needs for accessing the information. It is wise for employers to evaluate each instance carefully before requesting an employee to divulge his or her personal social media under this exception.

Employer-Issued Electronic Devices
The statute does not preclude an employer from requiring an employee to disclose a username and password for the purpose of accessing an employer-issued electronic device such as a computer, smartphone or e-mail account. Employers should exercise caution, however, before digging through an employee's use of personal social media on the employer-issued device.

It is a violation of the federal Stored Communications Act to access a restricted or password protected site without the owner's consent. So, while it is permissible for an employer to require an employee to provide his or her password for access to the employer-issued device, an employer may be violating the law by accessing social media information on the device. For instance, having the IT department look up the employee's Facebook password stored on the employer-issued device in order to gain access the employee's personal Facebook page.

Adverse Action Against Employees
The statute does not prohibit an employer from terminating or taking adverse action against an employee or applicant if otherwise permitted by law. For instance, an employer may discipline an employee for violating company policy and using personal social media during work time. Nor does the statute specifically prohibit employers from accessing publicly available social media. This means that employers may view the personal social media of its employees that is available to the general public on the internet, such as blogs and other websites that do not restrict user access.

But, before taking any adverse action against an employee based upon the content of his or her personal social media, employers must keep in mind that California law prohibits employers from discriminating against an employee based upon the employee's lawful conduct occurring away from the employer's premises during non-work hours. Moreover, the National Labor Relations Board has held that employees may use social media to voice concerns over working conditions. While an employee complaining about working conditions or an issue with a manager on his or her Facebook page may reflect negatively upon the organization, the employee's use of social media to criticize working conditions may qualify as protected speech for which an employee cannot be lawfully disciplined.

What Is An Employer To Do?
First, be patient. The law develops at a snail's pace compared to the development of new technology and cultural trends. More guidance will come. In the meantime, employers should approach social media issues with careful consideration and planning. This should start with the development of a written social media policy, and not a sample or template policy. The policy needs to be specifically tailored to the employer and should discusses the importance of social media, the impact that social media has on the workplace, and how employee's use of social media reflects upon the organization. The policy should also define the permitted use of technology owned by the organization and employee's expectations of privacy or lack thereof.

If an employer elects to have a policy restricting personal social media use during work hours, it should ensure that the policy is applied even-handedly to avoid claims of discrimination. Employers should also consider the pros, cons and legal issues that relate to restrictions on supervisors' social media interaction with subordinates. For most organizations, it would be advisable to inform employees that they are not required to interact with supervisors on personal social media and will not be retaliated against for refusing to interact with supervisors.

A carefully planned and well written social media policy that outlines the organization's goals and expectations of employees' use of personal social media can help ensure compliance with the new rules and prevent costly disputes with employees.