2L Emalee Peterson discusses her experience interning at the New Hampshire Insurance Department and her supervisor, Enforcement Council Joshua Hilliard, JD '14, talks about administrative law and his role at the department. Produced and Hosted by A J. Kierstead
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Legal topics include administrative law, insurance, risk, criminal, fraud, rules, civil law
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A. J. Kierstead, Host:
This is the Legal Impact, a podcast presented by the University of New Hampshire, Franklin Peer School of Law. Now accepting applications for JD and graduate programs. Learn more to apply@lawunh.edu. Opinions discussed are solely the opinion of the faculty or host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire and UNH Franklin Pierce School of Law.
I'm your host, A. J. Kierstead, and today I have a special edition of the show featuring alum Josh Hilliard from the GD class of 2014, and is currently the Compliance and Enforcement Council for the New Hampshire Insurance Department, as well as Emalee Peterson arising two well and current intern over at the department. Thank you both for joining me today. We've always had a big focus on the show in the past where hands-on experience is key in order to really be successful after graduation. We have a great career services office, great legal residency program and we love highlighting people out in the field. So start off with you Emalee, I mean, how did you hear about this kind of unique opportunity and what led you to select this for an internship?
Emalee Peterson:
So I applied through my school's career services office, which is very helpful, highly recommend going, and I was drawn to it because I have an interest in health law and this is super related, both life and health and there's also the property and casualty side, and I was drawn to the ability to have an impact on New Hampshire residents and the state as a whole.
A. J. Kierstead, Host:
Yeah, we'll be diving in later on specifics of what the department does because it's very unique in the landscape of administrative law and health policy. I mean, the departments frequently at the school because of the Institute for Health Policy and Practice and the health law and policy program we have. I mean, we're recording this only a couple of weeks in your internship, so we're obviously not going to go too in depth, but what sort of experiences are you having that have stood out to you?
Emalee Peterson:
The nice thing about being somewhere that's smaller and isn't a big firm or anything, is that I'm able to do a lot just as an intern. I've been able to actually email companies and I feel like I'm able to contribute already, which is really cool. And I am able to kind of practice skills I wouldn't maybe have been able to practice otherwise.
A. J. Kierstead, Host:
It seems like a lot of legal writing is probably a very important component to what you're doing.
Emalee Peterson:
Even if it's just a few sentences. It's nice to go over things with Josh and figure out the exact right way to word something to get a company to give you the information you want.
A. J. Kierstead, Host:
Can you speak a little bit to that experience where you have the health loan policy interest? How has that played out so far?
Emalee Peterson:
Good amount of the companies we look into were health insurance related, so I've been able to learn the ins and outs of very complicated industry. I've learned a lot of new terms in the past couple of weeks.
A. J. Kierstead, Host:
Now, over to you Josh, I mean, what is the role of the New Hampshire Insurance Department and what does a compliance and enforcement council do?
Joshua Hilliard:
Certainly. So the role of the department is really twofold as I look at it, both to protect New Hampshire consumers as well as to ensure a fair marketplace for the insurance carriers that are operating here in the state. So that takes place through the many divisions we have. I'm in the compliance and enforcement division. I tell anyone who will ask me that I think I have the best job here at the department because I get to go after the bad guys.
And that means when a company or producer, which is the term of art we use for an insurance agent, engages in any misconduct, I'm able to begin investigation to look into the allegations of misconduct, and if appropriate to take action against that insurance carrier or agency or agent. That being said, of course, there are many other divisions here at the department that do things like review the forms and rates for policies that are sold in New Hampshire.
There's a consumer division that just handles concerns or inquiries raised by consumers. There's a tax division that make sure as we levy appropriate taxes against the insurance carriers that operate in the state. So in all told there's, I think it's more than 70 employees here at the department covering really the gamut of anything related to insurance that touches the state. But again, as I said, I think I got the best role.
A. J. Kierstead, Host:
Yeah, and there's so many different types of insurance that are entailed with it. What are some of the, I don't know whether it's products or silos of law that maybe are really important when it comes to you as enforcement counsel?
Joshua Hilliard:
Sure. So as you identified, A. J., there's a lot of different products that run the gamut from property and casualty products. You think of a home or auto policy as well as, of course, life and health, life insurance annuities, health insurance. And we look into any of those, of course, any of that type of insurance. We also have jurisdiction over some things that get a little bit beyond what you'd think of traditional insurance, like warranty products, home warranty, auto warranty, cell phone warranty, things like that are actually regulated by the department.
As well as to specific areas of law, particularly it's administrative law we practice here. We're not in a courtroom. We all have administrative hearings to adjudicate the issues that arise throughout an investigation. That being said, courtroom skills are very important. I was lucky enough that in private practice before I came to the department, not only was I involved in many administrative hearings, I got to take place, I got to take part rather, in some trial work as well. And both of those are really same skillset and critical to apply to the investigations and the hearings we conduct here at the department.
A. J. Kierstead, Host:
And when you think administrative law, there must be countless silos when it comes to things that could cover. Obviously, here you're doing insurance. But I mean, there must be lawyers at all branches of state and federal government to do these sorts of things depending on what department they're in.
Joshua Hilliard:
Certainly, state, federal, and you've got to think as well as the private practice attorneys that engage in this. To give you a little slice of my career before, and another way you can look at administrative law is of course there's a Department of Labor right down the street from the Department of Insurance, which engages in hearings weekly with workers' compensation, or wage and hour hearings. And there are attorneys that really specialize in that on both sides, both those representing claimants and those are representing companies.
And you get a similar thing here as well. Of course we are representing the department and the people of New Hampshire, but there are attorneys that we see frequently here at the department that are engaged in this administrative law and represent companies or agents when of course we believe here at the department we find some wrongdoing.
A. J. Kierstead, Host:
And with insurance, many of these companies are in multiple states. So that must add a level of complexity.
Joshua Hilliard:
It does it, you're situated in an interesting position with insurance, because insurance is regulated almost wholly on a state by state jurisdictional basis with there being some federal oversight, though it tends to be quite limited. With a caveat that of course it's less limited in the line of health insurance, particularly since the passage of the Affordable Care Act. But beyond that, it's almost entirely a state by state jurisdiction, and oversight by each state's insurance department. However, that said, there are of course resources that branch across those jurisdictions, things like the NAIC, the National Association of Insurance Commissioners, which provides many tools and resources that allow the states to coordinate the efforts.
Given that, as you identify, A. J., of course, most of these companies, many of them operate across state lines across the whole country. And though they're regulated in a way sort of piecemeal, there needs to be some sort of coordination of efforts and examinations and investigations of these companies to make sure that they are operating cleanly across the country.
A. J. Kierstead, Host:
As an administrative agency that works under the governor's office, something that has been surprising for me to learn about is the amount of advocacy work for the industry and consumers that you do over at the State House as an office. Maybe not specifically from the enforcement side with your end, but in general there's general counsel there and there's a whole, there's at least a dozen lawyers on staff at the department.
Joshua Hilliard:
Certainly, yeah. My role is more limited there. I've only been called over to testify a handful of times over to the legislature, but certainly there are rules here at the department that require that much more frequently. Not only to comment to provide testimony to the legislature on bills that the department itself might put forward in hopes of better regulating the insurance marketplace, but also just to provide information and resources to the legislature on a host of other bills that are brought forward by other entities or persons, that touched in some way upon insurance in the state.
A. J. Kierstead, Host:
Can you talk about a couple cases maybe that you've worked on so people have an example of what you may be doing on over the course of a year?
Joshua Hilliard:
Certainly. If I had to break it down, I'd say about two thirds of the cases we deal with in enforcement deal with individual insurance producers, insurance agents. The other third, we are dealing more with agencies or insurance carriers. That said, I'd say about two thirds of the work time is spent on the third that our insurance carriers and insurance agents. And a normal day of an insurance attorney here in enforcement is we get in some sort of referral. That's a concern that there's been some illegality that's occurred and we need to look into that.
So we're drafting interrogatories to send to the company. We're engaging in telephone calls and we're bringing in people for interviews and then we're making a determination if we need to bring action against them. As to specific cases, we've had a couple of interesting healthcare sharing ministries as of late, which are entities that operate in sort of a gray area. There's a safe harbor statute that allows them to operate in a quasi insurance method.
However, many of these entities we found do not comply with our statute. We've got, of course, concerns that are raised almost every year with producers, agents that are alleged to have fraudulently signed policies. So persons who don't even realize they have a policy because it's been fraudulently signed by a producer. Every once in a while, if you've got concerns where money's being funneled in ways it shouldn't, that it's not being paid promptly though it's to a carrier though it's being remitted appropriately to the insurance agency.
Lots of concerns about mismarketing of products and that runs to gamut. It tends to be life and health more frequently with those sorts of issues. But we can also see it in P&C, and frankly in the last few years we've seen a lot of issues with consumer guarantee contracts as well. Those extended warranties on your home or auto. Again, a lot of it's mismarketing, and just not properly addressing claims that are raised by New Hampshire consumers.
A. J. Kierstead, Host:
What happens to these companies if it's found that they're doing something illegally?
Joshua Hilliard:
We have limited powers in terms of what we can do. Of course, this is all civil administrative actions. We're not finding anyone guilty of anything. It's just do we find that they've violated one of our laws and we can impose one of three sanctions. We can look to revoke a license or an authority to do business in the state. We can suspend the same or we can fine. And our fining authority is $2,500 per violation in most of our statutes, which at first doesn't sound like much. But then of course you have, let's say a producer who has fraudulently signed people up a dozen times. I mean, you're looking at $2,500 per each time they did that. You have a company that has sold a policy in the state that was not approved and would not be approved in this state. And again, they sold it a hundred times, 2,500 per starts to add up pretty quickly.
We most often assess fines and work with a company if we think we can more or less, I would say, rehabilitate them and work towards coming into compliance. And on the other hand, if we think there is violation of law that cannot be cured in that way, we look more towards a revocation.
Resolution on our end as well. While I said there's a lot of litigation skills that are used in terms of really discovery and engaging investigations and preparing for hearings, just as is the same in civil litigation, the vast majority of our cases are resolved prior to a hearing. So I'd say we usually have only to my great disappointment, given that I enjoy the hearings probably only about 12 to 15 a year, I honestly would like more. But it just so happens that the vast majority of our cases, I'd say greater than 80% of them resolve via consent order or settlement with the company or individual as a means to both cure the violation of law we see and to assess an appropriate penalty.
A. J. Kierstead, Host:
So what do you think, Emalee? Is this something you're going to want to do going forward, or is this going to be another tool in the toolbox that makes you a little more aware of the industry?
Emalee Peterson:
I'm not sure to be honest where I'll end up post graduation, but I'll definitely take some of the components with me regardless. I'm even more interested in insurance after being here for a few weeks, which I didn't think I would be interested in insurance, but it is actually a lot going on. And just the skills I learned too, I think the writing skills, just having confidence in myself is a learned skill that I've had a chance to improve upon here. And yes, there's a lot of things I'll take with me regardless of where I end up.
A. J. Kierstead, Host:
All right. Thank you so much to alum Josh Hilliard from the JD class of 2014, current compliance and enforcement counsel for the New Hampshire Insurance Department, and Emalee Peterson, a rising 2L and current intern over the department. You can learn more about the New Hampshire Insurance Department at nh.gov/insurance, and it will say that there are many insurance departments across the country. If you want to learn more about this very unique experience that Emalee's able to have here over in New Hampshire.
Thanks for listening to the Legal Impact presented by UNH Franklin Pierce Schools Law. To help spread the word about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcast, Google Podcast, and Spotify. Get the back episodes of the show on podcastslinks@lawtounh.edu/podcast.
