Category Archives: Claims Management

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Growing Cities Mean Growing Risks

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On a recent list of the fastest growing American cities, Nashville jumped from 20th to 7th in a year. There are more than 210 active construction projects in the downtown core alone. We are hardly alone. Denver, New York, Charlotte, Atlanta and more are experiencing similar growth. Cities are booming and growing, and the construction cycle is showing little sign of letting up soon.

This growth presents great opportunity for companies in the construction industry.

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While it is exciting to see many succeed and take part in skyline-changing projects, it cannot be overlooked that with growing opportunity comes growing challenges. Risk management and comprehensive protections are becoming a central component of doing business, as more activity, more competition and tougher deadlines mean that no matter how good a company is with its service, risk is increased.

A catastrophic accident or incident that isn’t properly prepared for can wipe out boom time profits for any one company. As an entity in construction and development, it is vital to be completely protected from a risk transfer standpoint.

To do that there are three things anyone in a boom time must recognize:

  1. Risk is contractually driven in the construction industry. There is no blanket standard on your risk or obligations when it comes to construction, and each contract spells out different demands.
  2. You are forced to put a lot of trust into subcontractors. No job can be completed without competent, capable subcontractor work. So, whether you are the general contractor or another subcontractor, you have to trust other entities to do their job to be certain you can do your best job.
  3. The best subcontractor teams are harder to come by. As I mentioned previously, there are 210 projects ongoing in Nashville’s urban core alone. That means subcontractors are in high demand and the team you want or typically use may not be available. That results in having to sometimes trust someone you’ve never worked with before.
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In short, risk is shifting from project to project.

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Much of the work of any project is out of the control of one company or team and the teams you work with are constantly shifting due to high demand.

That presents challenges. What’s the best singular way to address these challenges?

Don’t just leave your contract to your lawyers! Cover all the bases by allowing all involved in risk management and insurance to be engaged from the outset—starting with contract review and finalization. This is applicable to both general contract agreements as well as subcontract agreements.

Your lawyers are important when creating a legal document, but you also need to consider your insurance risk management partners as part of the contract origination team. They should have an opportunity to review your contract to make sure it is reasonable from a risk management perspective. This step opens the door for the contract to be shared with the underwriters early to get them familiar and comfortable with the parameters of the project and its risk. As a result, from day one there is an understanding of everything expected of the client, from how the contract agreement reads to transfer of risk.

For the subcontractors you use, diligence needs to happen when it comes to review of those Certificates of Insurance provided. Types of coverages, respective limits and additional protective wording should be stipulated on that Certificate of Insurance form and received as part of contract compliance and before subsequent works begins.

The good news for those in the construction industry is there is a high availability of insurance within the construction market. Insurers continue to strongly solicit construction business and are willing to provide the coverages needed—and at very competitive pricing.

Ultimately, while the right policies and the best packages are important, most of the work to ensure your protection is needed on the front end during the contract phase. Take the time to involve your risk management partners early in the contracting period and save yourself panic later.

This will not only ensure that you have the right protection in a time of increased activity and opportunity, but also mitigate the chance for gaps in coverages and ensure your insurance partner is ready to mobilize and advocate for you quickly and effectively in case there is claim.

5 Tips for Choosing the Right TPA

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While many risk managers have had excellent experience with their third party administrators (TPAs), others have been disappointed. Unfortunately, when the match isn’t right, the risk manager may be left with poor claim outcomes, higher claims and insurance costs, and difficulty identifying issues and making corrections.

The key to successful relationships often hinges on the risk manager’s ability to set  priorities and evaluate prospective TPAs and other claim service providers accordingly, based on objective, outcome-based metrics. Here are five tips for choosing TPA and claim service providers that are best suited to meet your needs:

  1. Look beyond household names. Too often, risk managers narrow their options based on name recognition.
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    While this might appear to be a safe choice, it may not yield the best fit. And that can lead to higher costs, poor outcomes, and ineffective relationships. Even with name-brand providers, mismatches might exist between the risk professional’s priorities and the service provider’s capabilities and operating cultures of the two organizations, available industry expertise, and resources such as risk management information systems.

  2. Articulate your needs and priorities. An effective relationship starts with knowing the specific requirements of your enterprise and setting relevant priorities. Are you in an industry with unique risks? Do you have a backlog of complex and legacy claims? Is your geographic footprint local, regional or national? Do you have significant operations in states with challenging regulatory frameworks? Do you need a provider with a strong reputation for closing difficult claims or managing litigation? How valuable are the TPA’s data management resources or risk management information system to your program? What’s your claims volume? Conduct a careful assessment of your needs, establish priorities, and create a request for proposal and related scorecard for evaluating candidates.
  3. Check how closely the TPA’s capabilities and resources match your needs. Areas you might examine include: staffing and account management, geographic locations, adjuster case load, pricing structure, reserving practices, quality assurance and training, MMSEA (Medicare, Medicaid and SCHIP Extension Act of 2007) reporting, litigation and subrogation management, managed care, data handling and reporting capabilities, and transition planning.
  4. As practical, insist on outcome-based metrics and use them to compare candidates. When you break it down, the fees charged by claim service providers represent only a small percentage of claim costs. Whenever possible, try to obtain metrics on actual claim outcomes rather than process. Analyze time and cost of various types of claim closures and percentages over time that might apply to your organization, check average claim duration and costs, and examine these results by state, your industry sector and other relevant breakouts.
  5. Know which adjusters will be assigned to your program. They’re the gatekeepers who will make a big difference in your results. So, be sure you know who the adjusters will be on your account. If your largest claims typically demand experienced adjusters with proven track records make sure that’s what you’ll be getting. Find out about their adjuster turnover rates. While some attrition might be expected, you want to avoid situations where you’re constantly re-educating adjusters to get up to speed—especially on complex and legacy claims. Try to ascertain whether their adjusters fit your culture, claims handling approach and priorities.
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Once you make your TPA selection, evaluate their performance on a regular basis. Track the TPA’s results against what you anticipated based on the metrics they provided in response to your request for proposal (RFP).

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By adhering to an objective selection process, including making sure the TPA’s team and capabilities are aligned with your priorities, you’ll be in the best position to get the results you want.

Workplace Sexual Harassment: More HR Guidance Needed

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From news anchors, to titans of the entertainment industry, to corporate executives, and elected officials, headlines show no one is above the fallout of sexual harassment in the workplace. Millions of dollars have been paid in settlements and the once mighty have fallen in disgrace.

Yet, a belated resignation or termination doesn’t absolve the employer from legal action—and often leaves the aggrieved and/or juries wondering how the employer might have handled the situation better.

How can risk managers, human resources (HR), executives and companies they serve help prevent sexual or other forms of harassment? The question becomes more pressing now with the “Ending Forced Arbitration of Sexual Harassment” bill. The proposed legislation voids forced arbitration and allows disputes to proceed in court rather than in a confidential arbitration setting. Proponents believe the prospect of making these cases public will reduce such activity in the workplace.

Smart employers aren’t waiting on legislation to make workplaces safer, however. They are planning and training now to reduce sexual harassment to mitigate risk, and therefore, potential damage claims affecting executives and employees across employer ranks. Ensuring such a workplace should result in fewer acts and reports of harassment and insurance claims. As all employers are interested in the bottom line as well as a positive work environment, a more defensible posture against future claims should be top-of-mind for every risk manager and HR Executive.

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Old policies prohibiting harassment must be dusted off, reviewed, updated and publicized. These policies protect those whose accusations are proven to have merit or are brought in good faith, they create consequences for those proven to have abused others, and should clearly define expectations and ramifications.

These strategies can help risk managers, HR teams, and employers keep their organizations out of the headlines:

  • Review internal policies and procedures. When was the last time your organization reviewed the HR policies and procedures manual? Older manuals may ineffectively address the issue, including under the Equal Employment Opportunity Commission (EEOC) guidance.
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    Once updated, make the document available to the workforce in print and online. However, a manual of policies is only the beginning.

  • Training is not a one-time event for select individuals. To paraphrase Aristotle, inclusion training in the workplace is not an act, but a habit. Hire a professional skilled in workplace diversity and inclusion training, and make courses mandatory from the rank and file to the C-suite. Refresh the training every few years, and make sure every new hire is trained as part of onboarding.
  • Create a “See something, say something” culture. Sexual harassment is avoided best in organizations with a culture of transparency and accountability. Management must welcome reports of unwanted sexual advances, and then investigate such claims. Such activity reported but not acted upon can worsen the environment, and become powerful evidence for claimants in harassment lawsuits.
  • Establish a realistic reporting procedure. If protocol urges an aggrieved employee to report harassment to a direct supervisor—and that supervisor is the alleged perpetrator—an obvious conflict arises. Encourage employees to speak directly to HR or a high level manager such as a division, general or plant manager. The reporting procedure should ensure that certain steps are taken so complaints are not swept aside.
  • Empower HR to investigate all claims. If HR receives a complaint, it has a legal obligation to investigate further. Even if the complainant fears an investigation could jeopardize the alleged harasser’s job, the law is clear that a prompt investigation occur to stop any alleged harassment from continuing. Termination or disciplinary action are not necessarily required; often, claimants just want the behavior to stop. It could be immature or otherwise benign playfulness that crossed the line—behavior a simple discussion could remedy.
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    Follow up with the complainant to ensure the behavior has stopped and to document that follow-up occurred.

Effective policies and procedures in place and rigorously followed can help employees know the organization takes sexual, racial, and other forms of harassment seriously; insurers know you’ve established policies designed to protect both employees and the organization against incidents of harassment; and for those who might see million-dollar claims in the news and think they could be next, that you’ve set up your defenses.

Proposed Bills Highlight Legal Risks of Sexual Misconduct Claims

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In the current climate of sexual harassment incidents being reported in a variety of industries across the country, organizations and their legal departments should be reviewing legislation and considering their legal risks, should they need to defend against sexual harassment or misconduct allegations.

Just this month, in fact, legislation was proposed at state and federal levels to keep employers from trying to silence accusers following mediation and settlements. The

Sen. Kirsten Gillibrand (D-N.Y.)

Huffington Post reported that the bipartisan legislation from Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Cheri Bustos (D-Ill.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace.

Similarly, legislation targeting nondisclosure agreements was recently introduced by state officials in New Jersey, California, New York and Pennsylvania to their respective legislatures.

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These involve standard confidentiality contracts that companies use in the event of a lawsuit so that the terms of a settlement do not become public knowledge.

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Depending on if, and with what wording, these bills are passed it will almost certainly affect companies’ and leaders’ policies and behaviors.

Linda B. Hollinshead, a partner in the employment law practice of Duane Morris told Risk Management Monitor that if confidentiality cannot be guaranteed during a settlement, there could be less mediation and arbitration and more courtroom battles as a result.

“If these bills are passed into law, I will be curious to see how employers change the way they handle these issues—because one of the things you hope to buy when you settle, is quiet,” said Hollinshead. “I would presume that if this is the direction in which things are going, employers may become increasingly more vigilant on preventing [misconduct] in the first place.”

Regarding the New Jersey legislation, advocates seem to be pleased with the bill’s introduction but do not disregard the value confidentiality can provide for a victim of sexual misconduct.

“While we are in favor of the intent of the bill, we do want to make sure survivors have the option to confidentiality,” said Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault. “Many survivors might wish to engage in a nondisclosure agreement, and we need to expand the opportunity for them to have the option to pursue nondisclosure.

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”

According to XpertHR’s Top 15 Most Challenging HR Compliance Issues for 2018  small, medium and large employers across the country expect sexual harassment to be a top matter of urgency moving forward. The report reminds that misconduct can occur between co-workers, both in and out of the workplace:

Harassment also may involve a wide variety of conduct—physical, written or verbal, as well as conduct over the internet and social media including cyberbullying.

For more legal risks to consider, visit www.rims.org to download the new RIMS Professional Report, The Top 8 Legal Developments You Need to Know About in 2017.