RDR learnings

At the beginning of August, the ‘You could not make it up” season got well underway with HM Treasury and the FCA launching a review to examine how to plug the advice gap (their own regulatory actions had caused). Well, they missed that last bit out in the announcement.

Anyway, a week or so later we learn that US regulators are/were in discussion with the FCA with a view to learning from the UK’s experience of implementing the RDR reforms.

It would also seem that in 2010, the FSA and FINRA (who regulate US brokers remunerated by commission) entered into a memorandum of understanding to support more robust co-operation between the two regulators.

Really? I am not sure what the reverse of that statement around “America sneezes and the UK gets the flu” is?

But if ever there was a better example of messed up regulatory thinking and political miss-management around the “learnings” part, the lead up to RDR in the UK and the resulting advice gap we have today, this is it.

We hope that America listens and learns where our regulators did not.

Here is an adviser “must read” for 2015, we highlighted the well warned of failures that RDR would produce over 5 years ago.

May I rewind you to the 19th July 2010 for a ‘told you so’ history lesson on the route map to statements emerging last week surrounding the success of RDR.

And the US regulator is asking the FSA to share learnings? How can anyone learn if the knowledge giver does not listen?

My observations in 2010, parodying the late, great satirist Peter Cook, in ‘Derek and Clive’ conversational style with Hector Sants, Martin Wheatley or George Osbourn on the subject still stands “ is this any way to run a ******* ballroom?



Not a 7 from ‘len’, are you getting value for your FCA fees?

Regulatory fee demands are, from an advisory firms perspective, never welcome, they do not even have a ‘Marmite’ element about them.

This year the FCA fees for 2015/16 will see a near 6% inflation busting increase.

The fees go to cover a myriad of things that advisers are well aware of, but many would be surprised to know that for the 2014/15 accounts recently published seven individuals received exit packages in excess of £100k, an uplift of some 130% on 2013/14 figures of three,

We recently submitted an FOI request asking who was in receipt of these sums but, despite this being an organisation to whom FOI requests can be made to, there seems to be a refusal to explain where over £1m of your fees has gone to since 2013.

Why, well you guessed it, section 40 of the Data Protection Act 1998

I attach the reply we received as it makes for interesting reading, one person actually received over £200k and the total exit package cost came to £2.8m.

Regulatory fees should not be spent this way.

Although this is at the upper end of the regulatory spectrum for paying somebody to go away, another FOI request has confirmed that at the lower end of the spectrum, the FCA is playing fast and loose with your fees too.

Nearly £7,000 was spent on something called ‘FCA Inclusion Fortnight’ to assist in valuing “differences in our people”.

APFA commented in their response to the fee hike The sign of a good public administration is its ability to deliver in the face of budget cuts or freezes, and local government and Whitehall departments proved that over the past five years. The FCA should face up to the same challenge, therefore we call on the FCA to exercise cost restraint and to commit to a real term freeze for two years to ensure its budget does not continue on its upward trajectory.

Cost restraint, FCA…I would say that you could not make it up. But…


Paralysed by Gunfire, but Denied Care

Having recently returned from a holiday in the US, I thought that IFAs would be interested in reading about this very sad case written, reported on by reported on by RONI CARYN RABIN on JULY 20, 2015 10:31 AM

“There is no video of the altercation between Monroe Bird III, a 21-year-old sitting in a car with a friend, and Ricky Leroy Stone, 56, a security guard who found them one night in the parking lot of an apartment complex in Tulsa, Okla.

But the tragic culmination of their encounter is not disputed: Mr. Stone drew his gun and shot Mr. Bird, leaving him paralyzed from the neck down.

Three months later, as he lay in the hospital hooked to a ventilator, Mr. Bird’s insurance company declined to cover his medical bills. The reason? His injuries resulted from “illegal activity.”

Yet Mr. Bird was not convicted of any crime in connection with the incident. He was not even charged.

Without insurance, Mr. Bird’s family could not move him to a rehabilitation center specializing in spinal cord injuries. He was discharged from the hospital and died at home last month from a preventable complication often seen in paralyzed patients.

The incident joins a disturbing litany of cases in which black men have been shot by white men in law-enforcement capacities. Mr. Bird’s family and their supporters believe racial bias motivated the shooting, at least in part, and protected the guard from criminal prosecution.

But Mr. Bird’s story comes with a particularly bitter sequel relevant to Americans of any background: The plan’s refusal to pay has left his family owing as much as $1 million in medical bills and, experts say, shines a light on a little-known loophole buried in the fine print of many health plans.

There are no firm numbers on how often insurers deny medical coverage based on allegations of illegal activity. But cases like Mr. Bird’s “are more common than people think,” said Crystal Patterson, an attorney in Minneapolis and chairwoman of the American Bar Association’s committee on fiduciary litigation.

Insurers have long relied on allegations of illegal activity to deny coverage to patients injured in a variety of contexts, from traffic infractions to gun accidents. The judicial rationale is that “we don’t want to reward illegal activity,” she said.

In one court case, a union health plan denied the claims of a worker’s son who was injured while allegedly building a pipe bomb, Ms. Patterson noted. In another, an insurer declined to cover the medical expenses of a man who lost control of an uninsured, unregistered car while trying to pass another driver in a no-passing zone.

Courts have upheld the denials even when there were no convictions for illegal activity. The administrator of the policy can deny claims even when no criminal charges are filed, Ms. Patterson said.

“The administrator gets a lot of latitude to make that decision,” Ms. Patterson said. “It’s a much lower burden than ‘beyond a reasonable doubt.’”

Lisa Stites, a spokeswoman for Craig Hospital, a rehabilitation facility for patients with spinal cord and traumatic brain injuries in Denver, said in an email that it was common for health policies to contain so-called exclusions for injuries resulting from drug or alcohol use, felonies, self-inflicted trauma or “hazardous” behavior.

Dr. Ford Vox, a specialist who works at the Shepherd Center, a rehabilitation facility in Atlanta, said the exclusions provided insurance companies with “an excuse to get out of very expensive cases.”

“The insurance can pull the rug out at any time,” said Dr. Vox, who also writes about medical topics for various publications. “And it’s all top secret — people don’t know about it until something happens to them.”

Insurance exclusions for illegal activity have been outlawed in some states, but state laws do not apply to health plans administered under the federal Employee Retirement Income Security Act, which sets standards for most pension and health plans in private industry.

Even after passage of the Affordable Care Act, self-insured plans regulated under Erisa maintain wide latitude to determine coverage. These plans “can do pretty much what they want to do,” said Robert Laszewski, an insurance industry consultant in Washington.

Mr. Bird’s family was insured by his stepfather’s employer, Southern Hills Country Club, and claims were processed by HealthCare Solutions Group of Muskogee, Okla. Citing privacy laws, representatives of both companies declined to comment on Mr. Bird’s case.

The events leading to Mr. Bird’s shooting may never be fully known. Like many trauma patients, Mr. Bird had no memory of the incident.

According to the police report, Mr. Bird was sitting in his car with a girl in the parking lot of the apartment complex where he lived with his sister’s family around 8:30 p.m. on Feb. 4.

Mr. Stone, the security guard, told police he approached the car because he had been instructed to look out for couples having sex in the parking lot. Mr. Stone said he shone a light into the car, told Mr. Bird that he was with security, asked for identification, and then tried to open the car doors.

Mr. Bird locked the car doors and tried to back out of the spot, according to Mr. Stone, who told police he stood behind the car to prevent Mr. Bird from leaving and was hit when the car backed up. He said that he jumped and fell against the rear window, breaking it.

When he was back on his feet, he said, he fired three shots as Mr. Bird drove away. He told police that he feared for his life.

But the car passenger, a minor whose name has not been released, told police she did not think the car struck the guard, and said the guard only started firing as they drove away.

Mr. Bird was paralyzed immediately and was treated in Tulsa hospitals for several months. In April, an official with HealthCare Solutions Group called Mr. Bird’s stepfather, Johnny Magness, to say that the company was beginning an investigation.

“I told her, ‘It sounds like to me you’re about to become the judge, prosecutor and jury,’” Mr. Magness said. “I said, ‘Please ma’am, don’t turn my son into a statistic. He needs care.’”

Two days later, the company denied coverage for Mr. Bird’s medical claims. The denial letter cited three exclusions, including one for illegal activity, which the letter said was triggered by Mr. Bird’s allegedly “striking the security guard with his motor vehicle and then leaving the scene.”

The denial meant the family could not transfer Mr. Bird to a rehab center where he could have received preventive care and adapted to life as a quadriplegic. The family appealed the denial, but it was affirmed last week.

This time, however, HealthCare Solutions cited “hazardous activity,” not illegal activity, and suggested that a third party, like the apartment complex, should pay the medical bills.

Mr. Bird’s medical claims might not have been denied had criminal charges been brought against Mr. Stone. But Oklahoma has a “stand your ground” law permitting citizens to “meet force with force” if they are attacked.

Steve Kunzweiler, the Tulsa County district attorney, concluded that Mr. Stone’s use of force was justified because he thought his life was in danger. “Mr. Bird might have made choices that might have gone a different way if he had listened to the security guard and obeyed his instructions,” Mr. Kunzweiler said.

Police discovered a vial of marijuana, illegal in Oklahoma, in Mr. Stone’s bag that night, and the results of a preliminary blood test showed that he had cannabinoids in his system.

David Riggs, a lawyer for Mr. Bird’s family, noted that the state’s stand-your-ground law did not apply when “the person who uses defensive force is engaged in an unlawful activity,” such as drug possession.

“The fact is, he was shot in the back as he was fleeing, driving away from this security guard,” Mr. Riggs said of Mr. Bird. “If there was ever a threat, there is no longer a threat.”

Repeated attempts to reach Mr. Stone for comment were unsuccessful. Mr. Bird’s family has filed a lawsuit against Mr. Stone, the security firm that employed him, the apartment complex where the shooting took place, and its property managers.

After the denial of coverage, Mr. Bird was discharged and went to his family’s home in Boley, Okla.

The young man, who required a ventilator to breathe, was cared for around the clock by his mother and grandmother, who fed him, bathed him, helped him cough, turned him in bed to prevent bedsores, and moved his limbs to maintain his range of motion, said Tezlyn Figaro, a publicist speaking on the family’s behalf.

Despite their care, Mr. Bird developed blood clots in his lungs and died on June 30”.

We do know that UK insurers have a clause in their policies regarding criminal activity such as: ‘We do not cover treatment you need as a result of your active involvement in criminal activity’.

The UK situation is slightly different as immediate A&E care would be provided by the NHS, the patient would then transfer to the NHS or private (as required) when they are stable.

We are sure most insurers would judge each case on its own merits and to our knowledge we have not seen a situation like this in the UK. 

However, we would be interested to hear of any example of declinatures such as this.