National Underwriter's 2016 Rogues Gallery

December 01, 2016 at 04:35 AM

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Each year, the insurance industry finds itself up against one bastion of evil or another. Whether its strict regulations, bad seeds in the business or reputation damage, the sector is in a constant state of "fight to live." And that it does.

As your trusted source of news and analysis within the industry, it is our job to bring to light — and publicize — that which is keeping the industry from reaching its full potential. This year, we have several newcomers to the infamous list, as well as a few veterans who may not come as a surprise.

The following is National Underwriter Life & Health's annual list of the top 10 individuals, organizations or regulations (in no particular order) that are hindering — instead of helping — the life insurance, health insurance and retirement planning industries.

Keep reading for a look at our 2016 Rogues Gallery.

2016 Rogue No. 10: Joshua J. Cerna

Joshua J. Cerna, seen at right in a photo by Marvin Pfeiffer of the San Antonio Express-News, was once an employee of The Mullen Pension & Benefit Group, LLC, a health benefits services company in San Antonio that provided insurance and related services to state and local government entities — including school districts and municipalities, on behalf of various insurance companies. Prosecutors say since 2007 Cerna, 43, has helped rig contracts to cover workers in the San Antonio, Edgewood and South San Antonio independent school districts. The case also involved contracts for the Bexar Metropolitan Water District.

The San Antonio Express News reported that a former co-worker, Samuel Mullen, was indicted and arrested on Sept. 23 in the Rio Grande Valley on a similar conspiracy charge. Investigators say as part of the scam, the Mullen Group paid bribes to a consultant to help secure contracts with the school districts. The U.S. Attorney's Office for the Western District of Texas said the consultant, William Oliver Haff, 46, pleaded guilty on March 31 to the kickback/bribery scheme.

According to the U.S. Attorney's Office, from March 2008 to February 2010, Haff accepted around $64,584 from the Mullen Group in exchange for providing confidential information concerning employee insurance plan Request For Proposals (RFP), including one issued by the Edgewood Independent School District in San Antonio, that was not available to competitors of the Mullen Group.

In September, Cerna pleaded guilty to a charge of conspiracy to commit honest services wire fraud, admitting he helped corrupt the process of insurance company selection. Prosecutor Mark Roomberg said the commissions resulting from the rigged contracts were $2.5 million for the group. Cerna and Mullen both face up to five years in prison.

2016 Rogue No. 9: Celia Castillo

One individual recently convicted of scamming a dozen seniors is Celia Castillo, seen here, a Houston-based insurance agent who cheated her victims out of more than $3 million. Seniors have enough issues to occupy them in retirement. One they can most certainly do without is financial exploitation by scam artists intent on cheating them out of their life savings.

Such exploitation is, unfortunately, a widespread problem.

One individual recently convicted of scamming a dozen seniors is Celia Castillo, seen here, a Houston-based insurance agent who cheated her victims out of more than $3 million. The con: She sold them phantom annuities.

The money she received actually went to line her own pockets. Case records of Devon Anderson, the district attorney for Harris County, Texas, reveal that Castillo deposited the clients' funds into a bank account she created for the purpose.

Geneva Titus, an investigator for the Texas Department of Insurance (TDI), described the crime as "especially insidious" because Castillo targeted seniors who had no nearby relatives with whom to consult about the annuity sales pitches. All of Castillo's victims were over age 70; two of them were older than 90.

In Titus' telling, Castillo assiduously cultivated relationships with her quarry — oftentimes taking them out for dinner or for a ride about town — with a view to securing their trust, then bilking them of their nest eggs.

It all went off without a hitch until TDI investigators — peace officers working within the department — coordinated with Harris Count Special Assistant District Attorney Jesse McClure to lift the veil on the scheme.

Once hit with an indictment, Castillo agreed to a 20-year sentence rather than face trial and a potentially longer prison term. Authorities locked her up last May.

Whether many other would-be fraudsters preying on the elderly will learn from Castillo's experience seems questionable. A frequently cited report by the MetLife Mature Market Institute estimates losses resulting from financial exploitation at $2.9 billion.

That was in 2011. Undoubtedly, given the huge dollar amounts involved, criminals will continue to find the elderly attractive targets for their fraudulent schemes. One can only hope that state and federal initiatives — including a bill passed by the House in July that would protect financial advisers from liability when they try to stop financial exploitation of seniors — will reduce the amount of swindling.

2016 Rogue No. 8: Jeffrey Grant

He's the boss of the people in charge of the CMS unit that runs the Affordable Care Act risk adjustment programs.

From the perspective of someone interested in how the Obama administration went about setting up the ACA public exchange program and related programs, Grant could be on a list of heroes. In July 2013, he sent an email to another CMS official warning that development of the HealthCare.gov exchange system enrollment software was going poorly, in part because the contractor had only 10 software developers working on the project.

But he's on this list because he's the official closest to the ACA risk adjustment program with a photo on the Web.

The ACA risk adjustment program is supposed to take cash from individual and small-group major medical coverage issuers with enrollees with relatively low health risk scores and shift the cash to issuers with enrollees with relatively high risk scores.

The Medicare Part D prescription drug program has a risk adjustment program that seems to be working well enough. But the ACA risk adjustment formula has been working in such unexpected ways that Molina Healthcare, a Long Beach, California-based carrier, says the system has shifted about one-quarter of its exchange plan revenue to competitors.

Insurance regulators in New York state, a state in which insurance regulators generally like the ACA and are tough on insurers, are so worried about the program that they are setting up a special market stabilization fund to help insurers hurt by excessive risk-adjustment program revenue transfers.

The incoming Trump administration may find a way to make a deal and fix the program. In the meantime, the program certainly looks as if it's gone rogue.

2016 Rogue No. 7: Rick Gerhart

Iowa Insurance Commissioner Nick Gerhart, seen here, isn't unique in allowing the growth of insurer-owned special purpose vehicles or "captives." But he's first among equals in enabling the SPVs' development with little oversight.

In the last 15 years, more 70 life insurers have dumped an estimated $440 billion in liabilities — blocks of in-force life insurance policies — to the SPVs. The problem: The ceded liabilities are often not matched by collateral assets sufficient to guard against default. Insurers that established the captives are thus at risk of financial insolvency.

For now, life insurers continue to shift policyholder liabilities to these opaque vehicles. The shell game is underway with the knowledge and approval of state insurance commissioners who oversee the SPVs. Astonishingly, the non-arms-length transactions are happening despite the fact they contravene the National Association of Insurance Commissioners' (NAIC's) Model Holding Act.

What sets Gerhart apart from other state insurance commissioners is his open invitation to allow the insurers to set up their captives within Iowa as well. Upshot: The SPVs are subject to oversight not by two state insurance commissioners (as is case when the ceding insurer and captive are domiciled in different states), but only one: Nick Gerhart.

"All commissioners that have allowed these sham transactions deserve to be publicly embarrassed," says Tom Gober, a fraud examiner. "But, amazingly, Iowa's commissioner has enabled Iowa-domiciled life insurers to form wholly owned subsidiaries as captives in Iowa.

"That means there is literally only one person — Gerhart — with the authority to say no to sham transactions between Iowa life insurers and their captives," he adds.

Given Gerhart's unabashed courting of the carriers' business, any check on their use of the SPVs seems unlikely. And so it's only a question of time before one of the bogus transactions makes headlines — and Gerhart is called to account.

2016 Rogue No. 6: Renata B. Hesse

Renata B. Hesse is the Acting Assistant Attorney General responsible for overseeing the Antitrust Division. Renata B. Hesse, at right, has been acting assistant attorney general responsible for the antitrust division at the U.S. Justice Department.

She has a bachelor's degree from Wellesley College and a law degree from the University of California at Berkeley. She's been vice chair of the insurance and financial services committee at the American Bar Association Section of Antitrust Law. She's viewed as an expert on matters relating the intersection of antitrust law and intellectual property law.

But she's on this list of rogues because she frustrated anyone (such as reporters) who wanted to see "Game of Thrones: The Affordable Care Act Public Exchange Version," reach its full dramatic potential. This past summer, she let the division sue to block the effort by Indianapolis-based Anthem to acquire Bloomfield, Connecticut-based Cigna Corp. and by Hartford, Connecticut-based Aetna to acquire Louisville, Kentucky-based Aetna.

Before the Justice Department sued to block the two deals, executives at the four companies were expressing a tender hearted willingness to forgive the stumbles of the ACA exchange system. After the department sued, waves of announces of 2017 individual market footprint cutbacks and agent commission cuts poured out.

Staunch opponents of the ACA exchange system might see Hesse as a heroine who helped show us what insurers really think about ACA programs, as opposed to what they say when they're trying get the Obama administration to approve mergers and acquisitions.

Exchange saga watchers who were enjoying the old story arc now have to put up with watching the exchange show with a new cast of players. It's as if a legal dispute forced the producers of the real "Game of Thrones" series to toss out the real actors and replace them with actors from a high school drama club. The show might still have some entertainment value, but it's not quite the same thing.

2016 Rogue No. 5: John Heath

John Heath, an Edina, Minnesota-based financial advisor, who pleaded guilty earlier this year to stealing $220,000 from an elderly client In the insurance business, clients trust their advisors to act in their best interest so the things most important to them in life — their families and their futures — are protected.

So it's especially troublesome when news surfaces of unscrupulous advisors who take advantage of that trust to steal from clients and give the rest of the industry a black eye.

Such was the case with John Heath, an Edina, Minnesota-based financial advisor, who pleaded guilty earlier this year to stealing $220,000 from an elderly client. Not only did Heath take advantage of the trust his client of 20 years had placed in him, but he also preyed on that client during a particularly vulnerable season in the client's life.

The client had been diagnosed with Alzheimer's disease and subsequently suffered a stroke in 2013. It was during this period of diminished cognitive ability that Heath changed his client's contact information on his annuity account to his own contact information and opened a checking account using the client's social security number, birth date and driver's license number, all of which he obtained in his role as the client's advisor.

Shortly thereafter, Heath began withdrawing funds from his unsuspecting client's annuity, which he had helped the client establish in 2008, and depositing those funds into the fake checking account, giving himself access to the stolen funds, which he used to pay bills and make purchases.

Wings Financial, the bank that Heath used to establish the fraudulent checking account, eventually became suspicious and froze the account. The bank worked with the Minnesota Department of Commerce Investigators and the Hennepin County Attorney's office to investigate and eventually bring charges against Heath.

Heath was also the accused in a second case in which he was charged with stealing thousands of dollars from an 83-year-old woman. For his crimes, Heath agreed to a prison term of 41 months.

It's unfortunate that the country's new renewed focus on fiscal spending has taken so long. (Photo: iStock)

2016 Rogue No. 4: Congress

President-elect Donald Trump noted in his Nov. 9 victory speech that he planned to invest in infrastructure to accelerate the economic growth and provide work for unemployed workers, millions of them key middle market prospects for agents and advisors.

It's unfortunate that the new renewed focus on fiscal spending has taken so long. For the delay, Congress bears much of the blame. Passage of the $787 billion American Recovery and Reinvestment Act in 2009 was too much little to compensate for the loss of jobs caused by credit crisis.

The administration would have gotten a far stronger package where it for not compromises with key legislators, on both spending and tax cuts, that Obama needed to make to get the legislation enacted. Still, the bill was a positive step on the road to recovery.

The real issue is that little has been done in the way of additional spending since the Recovery Act to further to jolt the economy and attack two intertwined issues:

1. 1. 1. Underemployment, and
    2. Wages that have failed to keep pace with inflation.

Congress has not felt compelled to act.

If key lawmakers on Capitol Hill had shown a greater willingness to work with the administration in spearheading a follow-up stimulus package — one that would have more than compensated for the loss of good-paying jobs in key sectors over the past decade — then Americans would have been spared the financial misery and suffering so much on display during the 2016 presidential campaign.

And agents and advisors catering to the middle market would have had millions more prospects — people in need of insurance and financial planning — with money to set aside for more than just daily expenses. As President-elect Trump prepares to take office, perhaps the long-standing spending shortfall will finally be remedied.

Federal Reserve Chair Janet Yellen testifies on Capitol Hill in Washington, Thursday, Nov. 17, 2016, before the Joint Economic Committee. Yellen sketched a picture of an improving U.S. economy and said "the case for an increase" in interest rates has strengthened. The Fed is widely expected to raise rates when it meets in mid-December. (AP Photo/Susan Walsh)

2016 Rogue No. 3: Janet Yellen

Though Forbes described Janet Yellen as the "world's top market mover" in its 2016 ranking of the world's most powerful women (she placed third), Yellen has done little to move anything for the insurance industry. In December 2015, she raised interest rates a mere 25 basis points — the first interest rate hike since 2006. But 25 basis points will hardly help life insurers, whose return on investments have been close to zero for close to a decade. But it's not only life insurers suffering. The low interest rate environment has hurt ordinary retirees, pension funds, issuers of annuity products that offer any kinds of guarantees, issuers of long-term disability insurance, and issuers of long-term care insurance.

Low interest rates aren't solely to blame for insurers' woes. Yet, life insurers and the analysts that track their financials consistently cite low interest rates as the chief macroeconomic threat to the businesses. And so Fed Chairwoman Yellen has consistently drawn the industry's ire.

Yellen has continued the practice of helping the free-money individuals keep the party going for the richest 1 percent, while not doing much of anything to get any of the free money flowing to the people who are trying to prepare for the future.

As Bloomberg recently reported, "Fed Chair Janet Yellen appears to be more inclined to let the economy run a little hot than to increase rates quickly." It is just this reason that Yellen has earned her third consecutive spot on our annual list of rogues.

President-elect Donald Trump and Vice President-elect Mike Pence have promised a tsunami of legislation in their first 100 days. (Photo: AP Images)

2016 Rogue No. 2: Donald Trump

When Donald Trump won the presidential election Nov. 8, he became the United States' chief financial services and health policy rogue-elect, because that comes with the job description.

He ran on a platform based partly on the idea of quickly eliminating Affordable Care Act rules and programs that at least half of the people in the country think they like, and on the idea that insurance companies and pharmaceutical companies are some of the entities manipulating the government to make life harder for ordinary people.

Once he gets into office, he's likely to infuriate opponents by making some health policy changes they hate, and to disappoint supporters by failing to make changes they like, either because he runs into opposition in Congress or in the courts, or because he learns more about the nuts and bolts of the issues and changes his mind about what he wants. In the short-term, at least, he can't win.

He's also a rogue because he colluded with Hillary Clinton (who have been the rogue on this slot if she had won) to make Medicare solvency a footnote issue during the campaign. Of course, both candidates mentioned the issue. But they could have made it a highlight, and gotten voters seriously interested in a matter of grave concern to every American.

Instead, the candidates gave the voters what the voters told pollsters they wanted, which, in the area of domestic policy, was discussion of other interesting issues that are certainly important but which are mostly not as enormous as the Medicare solvency problem.

Someday soon, public officials will have to get brave and get us to think hard about Medicare solvency, or the laws of economic gravity will make the Medicare program change decisions for us.

The Frances Perkins Building is located at 200 Constitution Avenue, N.W., in Washington, D.C. and serves as headquarters of the United States Department of Labor. (Photo: Wikipedia Commons)

2016 Rogue No. 1: The Department of Labor

Five words struck fear into the hearts of advisors in 2016: Department of Labor fiduciary rule. Many called the rule the most impactful thing to happen to the industry in decades… and not in a good way.

The 1,000-page document that makes up the fiduciary rule outlines conflict-of-interest rules surrounding a myriad of financial and retirement transactions. Standing doggedly behind the rule from the moment he joined the Labor Department in 2013 when the rule was still being crafted was Labor Secretary Thomas Perez. He vowed to produce a final fiduciary rule and made good on his promise in April of this year. In the face of industry criticism and eventually lawsuits against the final rule, Perez has stood firm in his belief that the rule will ultimately be upheld in court.

The final fiduciary rule was especially egregious to the fixed indexed annuity sector, which felt blindsided by a last-minute shift of FIAs to the Best Interest Contract Exemption rather than the Prohibited Transaction Exemption 84-24, under which they were expected to be governed in preliminary drafts of the fiduciary rule. Opponents say the industry was given inadequate opportunity to comment on the change.

In addition to creating a lofty compliance burden, the rule also is expected by many to limit advice to smaller investors, open advisors up to lawsuits and ultimately cause many advisors to walk away from the business rather than attempt to navigate the effects of the rule.

With a changing of the guard in the White House and likely the Labor Department in 2017, however, the fate of the rule and the impact on the industry is increasingly unclear.

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