Tag Archives: regulations

If the Regulations Don’t Fit, You Must…

International regulatory bodies like the G20 and the Organization for Economic Cooperation and Development (OECD) are still pining for recommendations for regulators on how to avoid another financial crisis like the one that engulfed the global economy in 2008.

The groups are increasingly leaning toward stronger consumer regulations to prevent another catastrophe, just like sophisticated regulators in the U.S. and other countries across the globe. The OECD, unfortunately, is taking a shortsighted approach to its consumer protection recommendations by suggesting one-size-fits-all regulatory standards will work for every regulator across the globe.

The OECD’s consumer protection recommendations won’t be issued, or received, lightly. And suggesting misguided regulations is dangerous. The guidelines will be (rightly) considered by regulators in nearly every country, despite their very different levels of sophistication concerning financial markets and consumer awareness. We’ve seen movement on one-size-fits-all policies in this area for years, most recently with Solvency II and capital standard policies under consideration in Brussels. The latest version we struggle with is a recommendation for regulators on how to consider the OECD’s High-level Principles on Financial Consumer Protection.

The principles are focused on the following areas:

  • Legal, regulatory and supervisory framework
  • Role of oversight bodies
  • Equitable and fair treatment of consumers
  • Protection of consumer assets against fraud and misuse
  • Protection of consumer data and privacy
  • Competition.

And the OECD recently issued draft guidance (framed as a “toolkit”) to address how best to approach the recommendations. Of course, each principle offers broad recommendations on how to manage issues affecting intermediaries. These could ultimately hit broker remuneration, transparency requirements, cooperation among supervisors and the like. And if the draft recommendations gain momentum, our ability to educate our regulators and shape sound consumer protection policies could be diminished.

That’s why the World Federation of Insurance Intermediaries (WFII) has been following the proposed “toolkit” closely. The federation issued a strong response to the OECD’s suggestions, rightly calling out the organization’s shortsighted approach and its assumption that regulators should approach with the same vigor businesses large and small and products designed for individuals, multinational corporations and companies located anywhere in the world.

The comments filed with the OECD by WFII rightly stated: “the pure fact that an effective approach has been developed in a range of jurisdictions is, in our view, not an indication in itself that it is indeed an ‘effective’ approach. We believe that sound research, an impact assessment and a cost/benefit analysis should be undertaken each time by the regulator/supervisor of the particular jurisdiction before any of these so-called effective approaches summed up in this draft, regardless of them being categorized as a ‘common,’ ‘innovative’ or ‘emerging’ approach. We urge the drafting team to clearly include this need for sound research, an impact assessment and a cost/benefit analysis in the introduction.”

The federation went on to suggest that applying the same guidelines to multiple industries can be dangerous, and it suggested to the drafters that the language clearly define when various sectors should be considered equally and when they should be treated differently.

Perhaps the most relevant comment to our market is the federation’s position on regulating companies of widely disparate sizes and revenue models. The federation told the OECD that “proportionality is a fundamental principle that should be taken into account by all regulators and supervisors every time they consider imposing requirements on the financial sector. Given the importance of this principle, we believe requirements imposed on the financial sector should be proportional to the size of the market player and the complexity of its service.”

The federation concluded its comments by suggesting regulators should engage market players and industry representatives with direct knowledge of the market practices as key rules are written. This point is particularly important for emerging regulators to consider, as their markets are among the fastest-growing in the world. A thoughtful and democratic approach to market guidelines ought to be encouraged to ensure their continued strength.

Nearly every developed economy continues to struggle with how to avoid another economic collapse, and the OECD has a strong role to play by issuing sound recommendations. It’s our sincere hope the suggestions to scale back its one-size-fits-all approach are heard loud and clear.

This article first appeared in Leader’s Edge magazine.

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

Breaking Through The Barrier Of Hardnosed Workers, Part 2

Righting The Ship Wrongly
For torturous purposes, let’s say that you are an executive manager who has inherited the type of hardnosed workforce described in Part 1 of this series.Your laborers are largely emotionally repressed, unsympathetic, narcissistic, uncontrollable and prone to permanently go AWOL. Ditto for your supervisors and managers. Collectively, your work force constitutes a change-resistant barrier that thwarts every attempt at achieving continuous improvement.

As risk strategist Greg Pena suggests, you set about to correct the obstructionist nature of your workforce. Otherwise, your best management efforts are “doomed from the start.”

Which quick-action strategy do you choose?

  1. Create and enforce more rules designed to secure better worker behavior?
  2. Implement a system of rewards and awards designed to reinforce good behavior?
  3. Pursue an aggressive program of quality assurance that requires strict behavioral compliance and reporting?
  4. Institute a behavior observation program that results in establishment of improved work procedures and oversight?

This is not a trick question.

Damage Control

To begin, you might start by quickly doing what others have traditionally done in similar situations.

  1. Assess where the most “damage” is being done by the most resistant workers.
  2. Speed headlong in pursuit of the holy grail of gaining control of those workers.

You do this because you’ve been taught that lack of control is the foundational cause of rebellious behavior. Control is considered a weapon. To heck with human resource management laws and employee management policies. They are slow, ineffective weapons of change. You need something that works quickly.

So to gain instant influence, you deploy whichever of the quick-action strategies (above, a–d) that you think will give you the fastest results. Each approach promises control; all are known quantities. Together, they constitute the bulk of management’s current wisdom in wrestling control from hardnosers.

The strategies are as follows.

a. Control By Directive — create and enforce more rules.
This is an old tactic closely associated with authoritarian or directive leadership style — it is dependent upon the strict use of the chain-of-command for enforcement. The strategy involves using rules and regulations to achieve (by demand) behavior compliance — control. It is the attempt to regulate and regiment behavior.

b. Control By Incentive — implement a system of rewards and awards.
This is a popular method of gaining control because it seems to “make the most sense” when it comes to worker motivation. It is based upon the belief that workers will be motivated to better behavior if they receive objective rewards, incentives or other strokes of positive reinforcement. Typically these take the form of safety awards, cash rewards or financial incentives that depend on the utilization of performance evaluations, merit ratings, or periodic reviews.

c. Control By Quality — pursue an aggressive program of quality assurance.
This is an old but evolving strategy, currently masquerading as the GRC (Governance, Risk & Compliance) movement. It promises the possibility of simultaneously achieving quality assurance, risk control, regulatory compliance, and behavioral control — with a dash of ethics, integrity, and maturity thrown in — if only we pursue the perfect quality assurance processes. This strategy started as the ISO quality certification process in which rigid paperwork and reporting processes are utilized by managers as an accountability tool.

d. Control By Observation — institute a behavior observation program.

This is a relatively new approach to gaining control of worker behavior. It is known by its popular name, behavior-based safety. In this approach, workers are trained to make intense and frequent observations of common work tasks in order that they might consult together and develop better methods for carrying out the work task. Workers are also taught the basics of how to communicate with each other when feedback is given on performance of work tasks. They are typically required to submit observational reports to authorities.

You don’t need to look hard to find assistance in whichever line of attack you choose. Professional pundits and practitioners of each stratagem are plentiful. So you select a plan. And it initially appears to work.

But its effectiveness in providing you anything other than short-term victory is sadly wasteful — your plan does not consider the characteristics of hardnosed behavior described in Part 1 of this series. None of the traditional control strategies do.

Eventually, you join the ranks of the frustrated transportation manager (Part 1) who implemented a safety training observation program, improved his operational policies, and led his organization in the ISO 9000 certification process — all to little avail. He still couldn’t control his hardnosers.

Changing the emotionally insular nature of rejection-prone people is hard. But as the manager stated, “The alternative, letting them continue to drag our company down, is not an option.”

Rejection On Demand
The fundamental mistake made by a majority of managers is assuming that control is the main issue, that control reduces resistance. And while control certainly occupies a high priority, the real issue is how it is obtained and why it is necessary to sustain it.

The tendency is to forget the lesson learned by all authorities. Any attempt to gain and maintain control of people in the wrong way ultimately results in the rejection of the authority.

Historian Page Smith states it this way. “The whole course of history indicates that one of the most potent bases of common action is a common sense of unjust subordination.”

Unjust. Fair or not, that’s how the common hardnoser views your attempt to gain control of him when you employ any of the well-intentioned strategies listed above. Setting aside the perception of justice, the hardnoser makes a valid point. Many times management demonstrates that it doesn’t know how to gain control, nor bother to explain why it is necessary.

What? Is Not The Question
Tom Slattery, Environmental Health and Safety Manager at POET Plant Management, pulls no punches in holding management accountable. “The way management and safety people talk to and treat the workforce,” he says, “is largely responsible for the ‘bad attitudes’ in the workforce.”

Slattery cites instances in which management says it wants one thing yet subtly rewards the opposite, essentially abusing its control. Placing himself in the mix, he says, “We do not follow through on promises, ask for true employee participation, nor explain the ‘why’ behind policies.”

In the realm of change-resistance, telling someone what to do and how to do it without telling them why they are doing it — why it is to their benefit to do it — is a cardinal sin. As Slattery emphasizes, telling them poorly adds fuel to the fire. It is the equivalent of assuming the listener has no needs other than the need to obey the management. Part 3 of this series explores the depth of the disdain created by this assumption.

Any child knows that asking an uncaring parent the why question (in a response to a command) almost always solicits the brusque answer, “Because I said so.” Yep, that really works.

Ignoring the need of workers to know why they must relinquish autonomy in order to follow the lead of management will provoke resistance from even-tempered people, much less needy hardnosers. Yet historically, that’s what management has done.

In the attempt to gain control of hardnosers, we’ve employed a lot of ‘what to do’ and ‘how to do it’ tactics without first considering the felt needs of the worker. Management asks for the rejection it anticipates.

As a result, a Cycle of Rejection develops. Most organizations that spawn hardnosers are guilty of entering this 6-step cycle. As illustrated below, the black colored steps represent management; red represents workers.

The 6 R’s Leading To Rejection

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Frequently the cycle of management missteps — the six R’s — that reinforce an ever-increasing change-resistant work force is as follows. If the object is control, this is how not to get it.

Revelation — Often using poor and impersonal communication, management tries to educate the worker with bits and pieces of the performance puzzle, most often “what we want you to do” and “how we want you to do it.” These are typically the minimum requirements of compliance — the policies, practices, or procedures that the worker is expected to obey/follow.

Response — The worker responds negatively to poor communication and perceived command-and-control tactics — they remain largely unresponsive to performance expectations. The worker equates poor communication with perceived neglect of both his real and felt needs. He begins to develop an attitude of skepticism/pessimism towards management.

Rationalization — Based upon the worker’s non-response, management perceives a resistance in the worker. Rationalizing that the only way to accomplish its desired performance goals is to use more direct commands, they resort to directive leadership methods designed to seize control of the sources of resistance and to force worker compliance.

Regimentation — Upon rationalizing that the worker will only respond to authoritative command structure, managers put forth a regimented series of operational rules and regulations — more specifics about what to do and how to do it — designed to force the worker to shape up (comply).

Resistance — The worker resists management even further, thinking that management is overbearing and taking away his ability to conduct his job as he sees fit. The process of addressing performance management through poor communication skills and mistaken tactics results in an increasingly change-resistant hardnosed worker.

Repeat — Management redoubles its effort to control the worker without rethinking its strategy. Nor does it stop to analyze the nature of the resistant worker and his felt needs. Repeated failure to do so leads the worker to forthrightly reject any and all attempts by management to seize control. To the worker, management becomes an unjust usurper.

Management’s inclination to simultaneously consider the steps of Rationalization and Regimentation are why they appear back-to-back in the cycle. As management becomes more entrenched, determined to win the control war, the gap between the two steps narrows. It becomes easier to rationalize that more regimentation is needed.

Duck & Cover
What the Cycle of Rejection illustrates is the futility of thinking that command will result in the control of hardnosers. Quite the opposite. But while it’s folly to follow this path of thinking, there is an even more damaging option to choose: doing nothing.

An operations manager whose supervisors had long been on the road to rebellion had this exact strategy in mind — do nothing — when he sheepishly asked the author, “You aren’t going to stir the pot, are you?”

The manager was worried that a few forthright words from the author’s keynote address to the supervisors would enflame the emotions that lay, he thought, comfortably submerged below the thin surface of civility. Yet his boss, the business owner, wanted a permanent solution to his hardnosers’ resistance. He wanted to take back control of his workforce. But no one knew how, much less why. Part 3 of this series will show you both.

Yes, the pot will be stirred.

Bibliography

“Focus On Teamwork, Attitude Improves Quality And Safety.” The Waterways Journal. April 25, 1994: 41-44

Newton, Ron. No Jerks On The Job. Irving, TX. PenlandScott Publishers, 2010.

Riddle, Glenden P. An Evaluation Of The Effectiveness Of Stress Camping Through The Use Of The Taylor-Johnson Temperament Analysis Exam. Research Project. Dallas Theological Seminary, December 1978.

Taylor, Robert. Taylor-Johnson Temperament Analysis Manual. Thousand Oaks: Psychological Publications, Inc., 1992.