Recently I had the honor to once again reprise my role as moderator in a panel entitled "Things That Make Bob Go, Hmmm" at the All Committee Conference of the Southern Association of Workers' Compensation Administrators (SAWCA). This was in Hilton Head, SC, and it was the fourth or fifth time they have invited me to do this. I've stated previously that it is a great honor to have a regulator organization name a session after you, as well as provide free reign on the topics selected and discussed. My panelists this year were Paul Sighinolfi, Executive Director and Chairman of the Maine Workers' Compensation Board, Beth Aldridge, Commissioner of the Mississippi Workers' Compensation Commission and Dwight Lovan, former Commissioner of the Kentucky Workers' Compensation Commission. Also joining us was attorney and author, Julie Tappendorf. Tappendorf is an expert on social media use by government agencies.
One of my questions to the panel touched on the entrenched bureaucracies and the “gotcha” mentality that can exist in some governmental regulatory bodies. To frame this particular question for the group, I first conveyed a real-life occurrence that happened to us a couple years ago at WorkersCompensation.com.
As some of you might know, one of our primary products is a compliance and research library called WorkCompResearch.com. It is designed to help insurance companies, TPA's and self-insured employers navigate the labyrinth of regulations across 53 workers' compensation jurisdictions. Sometimes we will get a question from a client company regarding some process or requirement that may not be easily found in the rules or statutes of a state. While we do not provide legal advice of any kind, we do consider it part of our service to attempt to locate an answer or clarify the question for our customers.
One day we received just such an inquiry, related to claims reporting requirements involving a rather obscure situation in a state that shall remain unnamed. The company, a large carrier (that shall also remain anonymous), simply wanted to ensure they were following proper procedure in these situations. Our staff could not find a clear answer for them, so they reached out to the state agency in question.
The response was disappointing, to say the least. The reply we received from the agency simply contained one question; “What insurance carrier asked that question?”
We declined to provide that name, believing their identity to be irrelevant to the issue. We simply wanted a clarification. The response was to insist that we had to reveal the carrier identity. What followed was something I can best describe as a third-grade level, Pee Wee Herman-esque exchange; “No, we don't.” “Yes, you do.” “No, we don't.” “Yes, you do.” “No, we don't.” “Yes, you do.”
The saddest part of the entire sordid affair? They never bothered to answer the question. Catching someone in a potential wrong was more important than helping them get it right.
When I told my contact at this carrier about the exchange, I assured her they had not been identified. She sighed, and thanked me, telling me that she tells her people not to contact any state agency for just that reason. Too often an innocent question turns into a bigger investigation desperately looking to punish someone somewhere for something.
How ridiculous is that? After I explained that scenario to the panel, I asked them that, and also put forth the question, “How do we stop the regulatory Gotcha?”
To their credit, the regulators on the panel seemed surprised by the situation I had described. Paul Sighinolfi agreed that practices that inhibit communication don't serve anyone's purpose. He told the room that, in his state, he welcomes employers or carriers with a concern or questions to contact him directly. He indicated he would answer their questions whether they “identified themselves or not,” believing that agencies must have open communications in order to be effective in their role. The panel discussion that followed essentially echoed that sentiment, acknowledging that we are all better served when agencies are willing to help their stakeholders get it right, rather than simply focus on catching them when they are wrong.
I will acknowledge that the state in question is not a member of SAWCA, but the point remains valid. The potential for misaligned incentives within a bureaucratic agency are quite real. I was at a DMEC conference a few years ago, where an Undersecretary of the US Department of Labor told the audience, “Call us if you have questions or need help. We are here to assist you.” That presentation was followed immediately by two lawyers who told their attendees, “Whatever you do, never call the US Department of Labor.” One of the lawyers explained he had a client whose innocent question to the department triggered a “multi-million-dollar investigation.”
So, how do we kill the regulatory “gotcha” mentality? It is a ridiculous problem to have. The company I spoke of earlier was only trying to assure they were doing the things the state intended, yet the state response seemed solely committed to ferreting out mistakes and punishing the perpetrators. The effect of that narrow-minded Neanderthal view is to stifle any communications that would otherwise ensure compliance. The goal to the question was compliance to the standards; why not help people do the job right in the first place?
The challenge of regulators today is that they are essentially temporary employees directing an entrenched and at times bureaucratic group of permanent employees. They are the new kids on the block, and they can sometimes encounter an entrenched “we've always done it this way” crowd. I offered advice to administrators a few years ago when I spoke at a Regulators College Lunch at WCI. I advised them to take some of those long term, entrenched employees and move them out of their comfort zone. Assign them different responsibilities than those that they have had for the last 20 years. Let them learn new tricks, but more importantly, get them out of their old bad habits.
The ignorant state employee in our story did not understand the role of their agency. The truly effective commission or board is one where compliance is the norm; not one that spends its time cleaning up violations and oversight failures. That happens with open lines of communication and a cooperative oversight climate. Regulatory bodies must be willing to lead as well as police an industry. Certainly, rule breakers must face administrative punishments, but the goal should be to foster compliance, not simply lay dormant until a rule is broken. The carrot is a more effective tool than the stick.
That must be understood by all if we are to defeat the gotcha mentality. And we will all be better off when that happens.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
Bob has a couple unique personality characteristics. He firmly believes that everyone has the right to his (Bob's) opinion, and while he may not always be right, he is never in doubt. Enter at your own risk, and like all of our blog areas, we encourage you to read the disclaimer at the bottom of the page.
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Bob is an accomplished speaker for the workers' compensation industry. He is available for conferences, corporate events, children's birthday parties and Bar Mitzvahs. You may access his Speakers Brief here.