Fiduciary Liability Insurance for Your Benefits Committee. Paul Hacker of Axis Insurance Services.

Employers that make health plan decisions act as fiduciaries under ERISA, and recent lawsuits have named HR and finance leaders personally. Chelsea Ryckis of Ethos Benefits and professional liability broker Paul Hacker walk through fiduciary liability insurance, D&O, E&O, cyber and crime coverage, how underwriters price them, and why every health plan vendor should carry its own coverage.

Key takeaways

  • Chelsea Ryckis says anyone involved in health plan benefit decisions is acting as a fiduciary under ERISA, and points to Lewandowski v. Johnson and Johnson and Navarro v. Wells Fargo as cases where HR and finance leaders were personally named.
  • Chelsea Ryckis lists the coverage she believes a fiduciary committee needs: fiduciary insurance, errors and omissions, directors and officers, cyber and a fidelity bond. Paul Hacker says these often come together as one package policy.
  • Paul Hacker explains that a D&O policy has three parts: Side A covers each director and officer, and Side B covers the entity that indemnifies them. He ties Side C to cases like Enron, where investors went after directors and officers individually.
  • Hacker says underwriters price these policies mainly on the services a company performs, its revenue and its location, while cyber premiums rise with the number of records held, especially health information.
  • Chelsea Ryckis says fully insured, level funded and self-funded plans all need this protection, because ERISA applies to all three.
  • Chelsea Ryckis tells plan sponsors to keep a copy of every vendor's E&O and cyber insurance on file, and Hacker says contracts are already pushing vendors to raise their limits.

Chapters

  1. Why your fiduciary committee needs protection
  2. Health plan lawsuits that name HR and finance leaders
  3. Five coverages for a fiduciary committee
  4. Meet Paul Hacker, professional liability broker
  5. Who sits on a health plan fiduciary committee
  6. Fidelity bonds and crime insurance
  7. D&O insurance: Side A, Side B and Side C
  8. How fiduciary liability insurance is priced
  9. Why cyber insurance costs more in healthcare
  10. Do brokers and PBMs need fiduciary insurance?
  11. Fully insured plans need fiduciary coverage too
  12. Ask every health plan vendor for E&O and cyber coverage

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"ERISA doesn't care if you're fully insured, level funded or self-funded."

Chelsea Ryckis, Ethos Benefits

"It covers defense costs and covers you for lawsuits and fines and penalties and things like that."

Paul Hacker, Axis Insurance Services

"our broker brings pizza for open enrollment, and I'm like, we're bringing strategy."

Chelsea Ryckis, Ethos Benefits

In this episode.

Employers that make decisions about their health plan act as fiduciaries under ERISA, and the people on the benefits committee can be named in a lawsuit personally. In this episode of The Business of Benefits from Ethos Benefits, Chelsea Ryckis and professional liability broker Paul Hacker walk through fiduciary liability insurance and the other coverages that protect a health plan fiduciary committee: directors and officers, errors and omissions, cyber and crime insurance.

Hacker explains how these policies are packaged and priced, and why cyber coverage costs more for anyone holding health information. Ryckis closes with a point for plan sponsors: protecting the committee is one step, and confirming that every health plan vendor carries its own E&O and cyber coverage is part of a prudent process. The ERISA fidelity bond is a separate requirement: it protects the plan against dishonesty by people who handle plan funds, not the committee members themselves.

About the guest.

Paul Hacker is a professional liability broker at Axis Insurance Services in northern New Jersey, where he works on errors and omissions, management liability, directors and officers, and cyber insurance. He began his career in managed care in 1991 and worked for health insurance carriers before moving into professional liability, which he says gives him a view of both the healthcare and risk management sides of an employer’s benefits.

On this episode.

  • Paul HackerProfessional liability broker, Axis Insurance Services

    Paul Hacker is a professional liability broker at Axis Insurance Services in northern New Jersey, where he works on errors and omissions, management liability, directors and officers, and cyber coverage. He started in the managed care business in 1991 and worked for health insurance carriers before moving into professional liability, where he had spent seven years at the time of this episode.

  • Chelsea RyckisFounder and President, Ethos Benefits

    BenefitsPRO 2024 Advisor of the Year. Leads strategy and benefits committees for Ethos clients.

Questions from this episode.

What insurance should a health plan fiduciary committee have?

Chelsea Ryckis says a fiduciary committee should have fiduciary insurance, errors and omissions (E&O), directors and officers (D&O), cyber insurance and a fidelity bond. Paul Hacker says employers can often buy these as one package policy that combines D&O, employment practices liability, fiduciary, crime and sometimes cyber coverage.

Can HR and finance leaders be personally named in a health plan lawsuit?

Yes, according to Chelsea Ryckis. She points to Lewandowski v. Johnson and Johnson and Navarro v. Wells Fargo, where she says HR leaders, CFOs and former VPs of human capital were named personally, and says that is the reason to protect the committee with insurance.

How is fiduciary liability insurance priced?

Paul Hacker says property and casualty underwriters look mainly at three things: the services a company performs, its revenue and where it is located. He says cyber is priced differently, based largely on how many records a company holds, and that health information pushes the premium higher.

Do fully insured employers need fiduciary liability insurance?

Yes, according to Chelsea Ryckis. She says fully insured, level funded and self-funded programs all need these insurances, and calls it a misconception that an employer is only a fiduciary when it is self-funded, because ERISA applies either way.

What do Side A, Side B and Side C of a D&O policy cover?

Paul Hacker says Side A covers each director and officer individually, and Side B covers the entity that indemnifies those directors and officers. He explains Side C with the Enron example, where the company went out of business and investors went after each director and officer individually.

Should employers check their health plan vendors' insurance?

Yes. Chelsea Ryckis says plan sponsors should ask every vendor, including stop-loss carriers, TPAs, carriers, brokers, medical management and the PBM, for a copy of its E&O and cyber insurance, and calls a vendor that does not carry them a problem. Paul Hacker says he already sees contracts requiring vendors to raise their limits.

Can a broker or TPA be sued even if it did everything right?

Yes, according to Paul Hacker. He says a client that feels it was badly served can sue the broker, the stop-loss carrier and the TPA together, and that E&O and D&O coverage pays defense costs as well as lawsuits, fines and penalties.

Full transcript.

Transcribed from the recording and lightly corrected. It may contain errors; the recording is the record.

00:01Welcome, welcome. The Business of Benefits is your no-BS, no-sales guide to real solutions. No gimmicks, just the truth about how to take control, transform your benefits, and care for your most valuable asset: your people. If you're tired of the same old sales pitch and you're ready to rethink your benefits, this podcast is for you. The truth is out there. Are you ready to hear it?

00:01Chelsea Ryckis: Welcome back to The Business of Benefits. So today it's a little bit different of a topic, and I thought this was really important for our HRs or CFOs and our employers to hear. So today we're talking about how to indemnify the risk of your fiduciary committee. So let me give you some context. If you are a plan sponsor, if you are in any way involved with the employee benefit decision-making process for your company, you should probably have a committee, because whether you realize it or not, you are acting as a fiduciary under ERISA, and that comes with a moral, legal and ethical obligation to act in the best interest of your employees and their dollars, to steward them well with prudence and loyalty.

00:57Chelsea Ryckis: There's a lot that goes into it. I'm going to do a completely separate episode on what it means to be a fiduciary, how to set up your committee, who should be on it, all the questions that are probably burning in your mind right now, right? But today's episode is going to talk about how do we protect that committee. Because if you look at the recent lawsuits, Lewandowski versus Johnson and Johnson, Navarro versus Wells Fargo, and there's some others that are in the pipeline that everyone's talking about, if you look at them, it's personal people being named, like actual HRs, CFOs, former VPs of human capital, all sorts of people that are being personally named in these lawsuits. So if that's something that can happen to you as an HR or a CFO, I mean, if that was something that could happen to me, I would want to indemnify myself from that risk. So how do you do that? That's what we're going to talk about with Paul Hacker.

01:53Chelsea Ryckis: So we're going to talk through the different insurances that an employer should consider for their fiduciary committee. It includes directors and officers, fiduciary insurance, cyber insurance, errors and omissions, and a fidelity bond, which is for crime and things, which Paul, the expert, will describe. So it's really important to understand how these work, how you can purchase them. He'll talk a little bit about what goes into the underwriting and ultimately what determines the price. Spoiler alert: it's really revenue. Shocker. That's how most things are calculated, right? So tune in. We're going to go through all the fiduciary insurances that you may or may not need for your committee, and then stick around for some other episodes. We're going to dive all through fiduciary decision-making, what that looks like. But first, let's go ahead and protect that committee. Enjoy the episode.

02:49Chelsea Ryckis: Hi everybody, welcome back to The Business of Benefits. I am your host, Chelsea Ryckis, and today I'm joined with Paul Hacker. Paul, go ahead, introduce yourself, your company and a little bit about what you do, and then I've got a big conversation for us today, because I'm super passionate about this topic, so I hope you're ready to go.

02:49Paul Hacker: Well, I'm used to your passion. I see you on LinkedIn every day, so we're all good.

02:49Chelsea Ryckis: Okay, good.

02:49Paul Hacker: So my name is Paul Hacker. I'm a professional liability broker. I work for a company in northern Jersey called Axis Insurance Services. We have 45, 50 employees, we manage about $90 million in premium, and all we do really is specialize in professional liability, errors and omissions, management liability, directors and officers. And again, because my name is Hacker, cyber liability, obviously, so I do a ton of cyber insurance. And I've been here for seven years.

03:18Chelsea Ryckis: Okay. Were you doing this type of insurance prior?

03:45Paul Hacker: No, I actually was on your side. I worked for insurance carriers on the health side back in the day, before phones and CRMs.

03:45Chelsea Ryckis: Is that when you... both ways uphill?

03:45Paul Hacker: Yeah, with no shoes, yeah, that whole thing.

03:45Chelsea Ryckis: I hear you.

03:45Paul Hacker: No, seriously, I started in the managed care health care business back in 1991, so I think before you were born. Possibly.

04:13Chelsea Ryckis: No, that was my birth year, actually.

04:13Paul Hacker: Oh, look at that. Perfect. All right, so I feel real great today about that.

04:13But I'm sorry, I work in that, so it's all good.

04:13Paul Hacker: My kids make fun of my hair all the time. It's all good. At least I have hair, so it's all good.

04:13Chelsea Ryckis: Well, you know what I think, Paul? I think you've got a very well-rounded perspective, having been on the consultant side of the healthcare industry, and then now you're on, sort of, the way I view it from my obviously niche here, is you're on the risk management side for employers, which is super, super important. So if you're good, I want to dive into that conversation, because we've been trying to keep these episodes to 20 to 30 minutes, and I feel like we've got a lot to cover.

04:41Chelsea Ryckis: So I'm going to set the stage for the fiduciary decision-making process. And so ERISA, obviously not a new thing, right? ERISA's been around. 401(k) lawsuits for breach of fiduciary duty, lack of prudence, lack of loyalty, basically making decisions that are not in the best interest of your employees on the 401(k) side, that have resulted in lawsuits, has been a thing for decades, right? Just recently, and Paul, I know you know this, so chime in, this is really more for our employer clients and giving them some context, but recently there's been a big focus on fiduciary obligation and fiduciary duty within health plans. So health plan sponsors, employers and all the people on the committee, if there is a committee, and if there's not a committee, it's anybody making the benefit decisions. So they have a fiduciary obligation, which is a legal, moral, ethical obligation to their employees, because they're being stewards of their employee dollars to make good decisions. And sometimes that's like, well, what does good decisions mean, right? It's truly acting in the best interest.

05:36Chelsea Ryckis: I've got an entire framework, by the way, for employers listening, if you want to know the eight specific things you have to do to meet your fiduciary obligation. Let me know, I'll send it to you. But here's the thing: every company that has a health plan should have a benefits committee, should have a fiduciary committee. That's a collective group of people with diverse perspectives that are making these benefit decisions. So on the committee could be the CEO, the HR, the CFO, maybe a couple department heads. I've seen committees bring in outside counsel. Paul, would you add anybody else to those committees?

06:34Paul Hacker: I think you've hit the nail on the head. I think that includes it, but they all have a fiduciary responsibility to be prudent, and that covers everything from claim dollars to pharmacy benefits, and I'll let you talk more about that kind of stuff.

06:34Chelsea Ryckis: Yeah, so when employers are making these decisions, right, the fiduciary obligation, it's not just the health plan that has the fiduciary obligation. It's quite literally, if you look at these recent lawsuits, Wells Fargo, Johnson and Johnson, there's a lot more coming. If you look at the lawsuits, the fiduciary decision makers are being personally named, right? There's the benefits committee, there's the health plan, and then there's the HR, the VP of human capital, the VP of total rewards. These people are quite literally being personally named.

07:01Chelsea Ryckis: So it's funny, I was just having a conversation with my production team here about how do you talk to employers and tell them this is real. It's getting real. Companies are getting sued. This isn't a joke. I mean, ERISA, yes, it's been around a long time, but the focus on the health plan sponsors and the health plan fiduciaries, it has become more of a thing since the Consolidated Appropriations Act of 2021, right? That's what's put it into the forefront, because that legislation, for any employers that are listening that don't know that legislation, is giving employers access to their claims data. It's giving employers access to compensation disclosures, so you can understand the incentives of the people giving you advice. It's giving you access to information to make prudent decisions.

07:57Chelsea Ryckis: So number one, you need a fiduciary benefits committee, and it can have all sorts of people on it. I've got a bunch of articles out there. I think I'll even do a different episode, maybe a separate episode before this that comes out, on how to design the fiduciary committee, and also what should be the expectations. They need to fill out conflicts of interest forms, they need to acknowledge that they're on the committee, there needs to be a fiduciary training, there needs to be committee meetings, there needs to be committee minutes, what should be discussed at these committee meetings, blah, blah, blah. There's a whole lot that goes into it.

08:24Chelsea Ryckis: But what we're talking about today with our expert Paul is how do we protect this committee? Because if you as an HR, if you as a CEO or CFO can be personally named in a health plan lawsuit for picking Blue Cross, right? Who thinks they get fired for picking Blue Cross or Cigna? How do we protect these people, or how do they protect themselves from this? And that's what I want you to guide us through today. So if you wouldn't mind starting with maybe the overarching insurances, and then I'd like to go into them one-on-one.

09:18Paul Hacker: Sure, sure. So employers, private, not-for-profit, public, more so public, because the SEC is involved, right? They have to... their plan document, everything they write about their health plan and how things work, they're all free game, for lack of a better analogy here. So what I mean by free game is they are scrutinized, if they're public, by the SEC. But if they're private, there's all this full disclosure, like you just said, the CAA, whatever you call that. But beyond that, there's a lot more folks looking at your company and your benefits.

09:46Paul Hacker: And I think personally, and that's why what you and Donovan and folks in your space do, you bring this information out, because I don't think employers understand their health plan once, and they rely on their broker. And if their broker is non-NextGen, if the broker's tied to commission, as the premium goes up they get more money, I don't think that's the right solution today. Because if I'm a broker and I'm friends or I'm a family member with the owner and I go to the golf club, that really shouldn't be the criteria to be the broker today. I'm not just saying this.

10:47Chelsea Ryckis: No, there's lots of... there's actual liability, though, in that now, which I think is important to note, right? I can't tell you, I won't obviously ever name names, but there is a company in the northern part of the country, 4,000 employees, and it's a best friend from childhood that is running the benefits, who by the way is a financial adviser, not even a benefits adviser. And the commission in the dental: these employees are paying almost $60 a month for an employee-only dental plan. We're in that region. It is a little pricier in that region. It's like 35, 40. The rest is commission. The plans were loaded with compensation, and if you were to benchmark these benefits, it's astronomical, and it's all because they don't want to break a relationship with a childhood friend.

11:45Chelsea Ryckis: So those are the types of decision-making employers that will eventually, whether it will lead to problems, whether it's a lawsuit or not, who knows. But you know what it will be? Turnover. People are going to leave, and they're going to go to the same, I won't say the name of the industry, but they're going to go to the same type of business across the street where the benefits are half the cost. And that wouldn't be hard to do, because it was so bad. So for people who are making these decisions at these companies, right, let's start with... so this is what I know, tell me if I'm wrong: I believe that all fiduciary committees need to have fiduciary insurance, they need to have E&O, directors and officers, cyber and a fidelity bond. Did I get that right?

12:14Paul Hacker: Right. Fidelity bonds is just another term for crime insurance. And the reason why you would have crime: if you're holding money for your customers. I have clients that, you know, in the TPA space, and they do HR and FSAs and all that fun stuff. They had to get, it's mandated by the states that they're in, to have a crime insurance policy, so that if there's an employee theft, they can file a claim to get the money back for their client. So, so yes.

12:43Chelsea Ryckis: So fidelity bonds, just so employers understand, that's to protect from theft, right, or like embezzlement or something, kind of like a misbehavior act? Is that a good way of explaining it?

13:12Paul Hacker: I wouldn't call it misbehavior. It's just, if you're managing money for your clients, and you could be a registered investment advisor, you could be a third party administrator on the health benefit side, or disability, or 401(k), which you said earlier, anytime you're holding money and managing money, you're mandated usually by a state to have a fidelity bond, also known as crime insurance. But beyond that, I think what employers definitely need, and fiduciary is interesting, because fiduciary is really in place if you're managing a 401(k) for your employees, you need that, or you're a third party administrator. But the areas of wrongful acts or other things that occur really comes down to if you're owners and your directors, and you get a directors and officers policy. And directors and officers really covers you for, you know, that you steal proprietary information when you left, did you have a non-compete, that kind of thing. But you really need all those. Companies don't have to be public. To be private, nonprofit, you have a board, you definitely need directors and officers.

14:11Chelsea Ryckis: Okay, and that's going to be for each individual on the board, right?

14:11Paul Hacker: It's going to be, yes, but there's three levels of a D&O policy, and we could spend another session on that. But there's Side A, Side B and Side C. Side A really covers each director and officer. Side B covers the entity that indemnifies those individuals, directors and officers. And then Side C is, hey, Enron's a great example. That company went out of... that's how D&O really started. They didn't have coverage for when the company went out of business, so the liability for all that money that was lost, the investors went after each director and officer individually, and that could be crazy. So that's why you have three levels of a D&O policy.

15:06Chelsea Ryckis: And that's obviously paid for by the company, right?

15:06Paul Hacker: That is right. The company will invest in that, and typically these programs, the directors and officers, employment practices liability, that would be for anyone, trying to be polite here, sexual harassment or wage and hour issues. You know, the button under the desk when the door shut, that kind of thing, or Harvey Weinstein before his hip replacement there.

15:33Chelsea Ryckis: Wow.

15:33Paul Hacker: No, just, yeah, I won't go in, but seriously, that kind of... that's what. So they're packaged. So you've got directors and officers, employment practices liability comes together, and then there's other parts of the coverage for fiduciary, there's a crime piece, and there's also potentially a cyber piece. And that's all a package policy that employers can get. Sometimes I have customers say, I only need D&O, because I have three board members, that's all I want. That's fine. But that covers all those things that come in packages for an employer.

16:01Chelsea Ryckis: Okay, so employers can get all the insurances that they need for their fiduciary committee under almost like one umbrella-type policy, it sounds like.

16:28Paul Hacker: That is a great analogy, yes. But don't get confused, because there's umbrella policies, there's also excess policies, but...

16:28Chelsea Ryckis: Right.

16:28Paul Hacker: But for our audience, I think umbrella's fine.

16:28Chelsea Ryckis: Okay. Talk to me a little bit about the price of these things. So I've been in competitive situations where I'm taking an employer from a fully insured to a self-insured model. We're going to be saving them usually hundreds of thousands, if not millions, and then the incumbent broker comes back and says, well, did you know you're going to have a PCORI fee, and did you know you'll probably need to get some insurances? And then my inevitable response is, yes, and we can do that with the millions of dollars we've saved, right?

16:57Paul Hacker: Absolutely.

16:57Chelsea Ryckis: But it's one thing for me to say it. What would you say is the average price, maybe total price, or if you want to do it per policy, that employers... and does it matter on the size of the employer?

17:24Paul Hacker: Mm-hmm. Well, yes, basically. From an underwriter, I'll put my underwriter hat on for a second. So property and casualty is so different from medical, right?

17:24Which is why I have you on the show and I'm not myself.

17:24Paul Hacker: So typically, the broker who is representing the medical plan may not be the same broker doing the property casualty. Some houses or some brokerages have producers on the medical side and they have producers on the P&C side, and collectively they do it together, kind of like what we may be doing for some of your clients moving forward, right? We're not connected, like, the same company, but we're connected.

17:54Chelsea Ryckis: Yeah, I'm connecting you to my clients to get their insurances.

17:54Paul Hacker: Correct. So typically these firms would probably have that P&C package already. So just to answer your question, how do you gauge the price? It all depends. Just like in stop-loss, it all depends on the age of the group and where they are, all that fun stuff. In the property and casualty world, it's basically three or four things: what are the services you perform, that's your E&O side; what's your revenue; and where are you. That's basically the three things we look at from underwriting. On cyber, a little different. We'll get to that later. Cyber is expensive.

18:51So, well, I got... I was... well, but I got you good, but... so he's like, I covered you really well, don't worry, you are covered for...

18:51Paul Hacker: And I can go another session for that, but it's, you know, cyber is weird, and weird's probably not the right word. I'll give you a quick history, just like 30 seconds. So you look at cyber before COVID, it was so cheap, because the underwriters and the carriers are only looking for membership. So they ask: name your company, website, revenue, how many records. And records could be personal identifiable information records, like a credit card or a bank card, and then PHI, which is private health information, or electronic medical records, is really more involved. So if you had more records, like if I was a TPA, my premium for cyber is way higher than for an advisor with X number of revenue. So if I compared your premium that I sold you to a third party administrator, you're like, well, I got a good deal. I'm kidding.

19:50Chelsea Ryckis: So what about, but for employers, right, do you think that their fiduciary committees need to have cyber insurance, or do their vendors in their health plan need to have cyber insurance?

19:50Paul Hacker: I think every company, and I'm not just pitching because I sell this stuff, every company in the health care food chain, so that's you, that's a TPA, that's a hospital, that's a Change Healthcare, whatever. See, hackers get $250 per medical record they steal, then they sell on the dark web. If I sell credit card numbers, I get $5 per record. If I sell a Social Security number, a dollar per record. So we're in business, right? We want to project what we're going to make. My focus, if I'm a cyber guy, if I'm a hacker, a thief, I'm going after the healthcare people. And that's why you saw the Change Healthcare $22 million ransom, or you see Ascension Health. Every day you see something in healthcare, someone getting hit. And everyone thinks it's a large company. It's not just a large company.

20:45Chelsea Ryckis: Oh, no, it is.

20:45It's all-size companies.

20:45Chelsea Ryckis: Yes. We've heard of brokerages, even, competitors to us. Think about the data that, if it's not secure, that people in our industry house. And I think that's another part of the fiduciary conversation, right, for employers. Because yes, the fiduciary committee, the reason it exists is for you to have a fiduciary decision-making process that allows you to have better health outcomes and better financial outcomes for your health plan, and to show that you are being a prudent steward of your employees' dollars, right? And in order to do that within this fiduciary decision-making process, you need to benchmark your vendors and their compensation, you need to monitor their performance, you need to have KPIs, you need to explain your strategy and document your strategy. There's a whole framework that goes into the actual fiduciary decision-making.

21:43Chelsea Ryckis: What we're talking about today, though, guys, is protecting that committee from lawsuits or fraudulent acts, like Paul's talking about. So let's talk for a second just about fiduciary insurance. So I know that that's part of a bundle that employers can buy for their committee, along with directors and officers and E&O and all the other stuff. Fiduciary insurance on its own, I'm really interested to hear what you think about this. So ERISA states that the only fiduciary is an employer, right? So I don't even want to use this example, but for example, Johnson and Johnson, Aon's the broker. The PBM gets sued, or Johnson and Johnson gets sued for their choice of the PBM. Aon is the consultant that recommended the PBM. The PBM was obviously doing some nefarious things. However, their contract allowed for it. They are not fiduciaries, they have no obligation, they have no legal liability. Do they need to have fiduciary insurance, or is it just the employer?

22:37Paul Hacker: Well, that's a great question. So what happens in lawsuits, unfortunately, even if you did everything right as the broker, but your client thought a level funded plan, I'll use that example, was going to cover them, and the budget was X, but it was X plus at the end of the day, and they had to pay more money at the end of that particular year, that client could sue. And when they get a lawyer, they have employment lawyers that specialize in insurance. That lawyer is going to sue the broker, possibly the stop-loss, possibly the TPA. They're all part of the same solution, and it's a large net that's cast out, and everyone gets hit with that.

23:34Paul Hacker: Now, what happens in E&O or D&O: even if you did everything right as the broker, if your client feels like you didn't do the right thing, they're going to lawyer up and they're going to sue you. And then, rather than going to court, that's why you have this coverage. It covers defense costs and covers you for lawsuits and fines and penalties and things like that. They're going to say, I don't want to go to court and go to a trial, because look what happened. We had a client, not to name names, a very large insurance brokerage, and their brokerage had a client, and something happened where this particular employee got fired. The employee lawyered up. It should have been an employment practices liability claim, but it turned out to be an E&O claim against the brokerage. They went to trial. We had high limits on this tower. It's layer on layer on layer on layer, because it's so huge. They should have settled that for whatever. They went to trial, and the jury awarded that particular employee that got fired $35 million.

25:07Paul Hacker: It's a huge company, but that's what happens when lawyers will say, okay, what's your coverage, and they find out how much. This particular client, we have a $100 million limit on their E&O. They're just so big, and they find out that, and then the jury, it's punitive damages, the jury awarded more. And they fought it and appealed it. I don't know what the end result was, but that is the worst case scenario.

25:35Chelsea Ryckis: Yeah. So brokers, advisers, obviously TPAs, everybody in the healthcare supply chain, including employers, should have errors and omissions, is what I'm hearing you say.

25:35Paul Hacker: Depending on what that employer does. Most employers that we represent, like, we do a lot of insurance agents and brokers as a company. I do a lot with advisers, obviously, because I came from your world and I understand the risk. And a lot of underwriters don't understand what you all do. They think you're a P&C broker or a life, accident, health broker, but you're not. You're actual advisors, and you're looking at an employer's health plan and taking it apart and saying, by the way, you're paying this much more when you could be doing it this way, and by the way, you get better care because, blah, blah, blah, blah, blah, right? So we do a lot of that kind of stuff.

26:30Paul Hacker: So an employer, like, I have a brokerage in Wisconsin. A lot of their customers are manufacturers. We don't do a lot of E&O on manufacturers, but we do a ton of cyber with them. They have a customer that does Medicaid spend-down for people that are going into nursing homes. It's estate planning, basically. And then they got more involved with that. That's a service, it's a professional service. That's when you need, you know, most employers, anyone providing a professional service, accountants, software manufacturers, that's a little bit different risk. So they'll have to have some sort of errors and omissions professional liability, but they may need a technology component and a cyber component combined for those folks on the software manufacturing side of the house.

27:30Chelsea Ryckis: So what about...

27:30But in general, it's all good.

27:30Chelsea Ryckis: Well, what about the actual benefits administrator, right? So not the HR, the CHRO, nobody like that that's strategic, maybe on the actual fiduciary committee, but the people who are entering in payroll deductions, or could make clerical errors that lead to potentially colossal mistakes. Do those people at employers need E&O?

27:59Paul Hacker: Depending upon what the services that they provide. I think a great example would be, what was a big one, Ticketmaster, right? That was more of a cyber type of situation, that they got hacked. But anybody providing a service, so I think an accountant, a doctor, medical malpractice is errors and omissions for a doctor, lawyers, it's called lawyers professional liability, health plans, that's insurance coverage for a health plan. But anybody on the healthcare side, consultants, advisors, TPAs, [inaudible], anybody providing those services, they have to have errors and omissions, and they're going to have to have cyber whether they like it or not. They're going to need it, because if they get hit...

28:54Chelsea Ryckis: Yeah, I mean, that's... it's hard to come back from that. I mean, imagine the trust that would be broken.

28:54Paul Hacker: True, but the cost. The average ransom is $1.2 million for a small, midsize company. Now, that's the ask from hackers.

28:54Your last... I was like...

29:22Paul Hacker: So no, that is the ask, but then there's other pieces of that. We can do another session on this, just overall. There's other pieces that you get charged: data breach, forensics, third party lawsuits. So if you have $100,000 coverage on your E&O, your liability policy, and you get hit, you're going to have to pay out of pocket. You may go out of business because of that. That's how crazy it is.

29:49Chelsea Ryckis: Absolutely.

29:49I know this is more of a fiduciary discussion, but...

29:49Chelsea Ryckis: No, I think it's a good... businesses, number one, you need to protect yourself in all the ways. Obviously, when you're thinking about your health plan and your fiduciary committee, you need to protect those people that are doing the best that they can to make the best decisions that they can, if something unfortunate happens, whether it's a fraudulent act with the fidelity bond, or it's a mishap, or you choose the wrong PBM or the wrong TPA and they go under, whatever it is, right? I'd also like to mention that fully insured, self-funded and level funded programs all need these insurances. It's not just self-funded employers. I think sometimes there's a misconception around, well, I'm only a fiduciary if I'm self-funded. No, no, no, that's under ERISA. ERISA doesn't care if you're fully insured, level funded or self-funded. So we need to wrap up our conversation here, but I'm curious if you have any other takeaways, specifically for employers, their fiduciary committees, and how they can manage their health plan.

30:46Paul Hacker: Well, I think, as you hit the nail on the head earlier, there's a lot more people looking at what brokers are doing for their clients, and if they have to fill out that form you mentioned earlier, full disclosure, compensation...

30:46Chelsea Ryckis: Correct.

30:46Paul Hacker: You finally realize, you should realize as an employer, geez, I'm spending this amount of money for this service, and my broker's calling me twice a year and showing up with pizza. Like, who cares?

31:16Chelsea Ryckis: Yeah. Well, I can't tell you how many times we would take over a client, this was in our early days, but they'd be like, well, our broker brings pizza for open enrollment, and I'm like, we're bringing strategy. We're bringing carrots and celery.

31:44Paul Hacker: It's healthier for you.

31:44Chelsea Ryckis: Yeah, we're doing wellness. One other comment that I think would be important to make is, not only for employers, as the fiduciary committee, you need to protect the committee, for sure, which is exactly what we're talking about, risk management for the committee itself from the fiduciary liability. But part of the fiduciary decision-making process would be ensuring that all of your vendors have the necessary insurances in the case of a ransom, a data breach, whatever it is, E&O, an employee sues, whatever it is. So I don't think enough businesses and plan sponsors are... you need to have that on file. Your stop-loss, your TPA, your carriers, your brokers, your medical management, your PBM, everybody that's involved in your health plan, absolutely be asking for a copy of their E&O, a copy of their cyber insurance. I mean, if they aren't investing in that, that's a problem. You have to vet your vendors.

32:42Paul Hacker: And that's what we're seeing. And some of my clients, you work with them, and not to really pitch them, but some of my clients on the cost containment side are now being asked by their vendors and potential clients to up their limits. Up their limits. I have a client who has a $2 million limit for E&O, actually, it's a medical malpractice type of thing, and their cyber was $3 million. The new contract is saying, well, you need to be at least $5 million. And it's very hard for them to get the five, where it's just huge. So we had to negotiate that down to a $3 million limit versus a $5 million limit. But the cyber, they wanted $5 million because of this PHI aspect of the medical side of it. So you're going to see this. As you talk to your potential clients and your clients, they may ask you, as you grow, or their lawyers say, you need to have higher limits, because the exposure's higher.

33:42Chelsea Ryckis: 100%, and I welcome that with open arms, right? Paul, it's been really fun talking to you today. Thank you so much for giving a bit of a background on the different insurances. Where can our audience find you if they have questions specifically for their plans?

34:09Paul Hacker: You can get me on LinkedIn. I'm there a lot. I do post a lot of cyber stuff. My boss is saying, you've got to get out of the cyber world, because Hacker's hacker, but you've got to do your E&O stuff too. But LinkedIn, seriously, or you can reach me... I can give my phone number out and email, is that okay or no?

34:09Chelsea Ryckis: Yeah, absolutely.

34:09Paul Hacker: All right, so my cell phone is...

34:59Chelsea Ryckis: ...background and more about the information. And I honestly think that this topic is something that not a lot of consultants are sharing with their employers, and a lot of employers just don't know about, so this was a great intro to it. Maybe we can do some more topics specifically on just one type of the insurances as we progress. But thank you for being here, Paul. We appreciate your insights.

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