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Applying ERISA Fiduciary Rules to Health Plans, Services and Products 2020


Speaker(s): Benjamin J. Conley, Brian J. Lamb, David Larson, Howard Pianko, Ilyse Schuman, Jennifer A. Kraft, Judith L. Wethall, Karen L. Handorf, Kirstin Poirier-Whitley, Natasha S. Fedder, Sruthi Mylavarapu, CFA, Susan M. Nash, Uche A. Enemchukwu
Recorded on: Nov. 4, 2020
PLI Program #: 279144

Ben Conley counsels clients on qualified retirement plans, health and welfare plans, and executive compensation. He regularly advises clients on defined benefit and defined contribution plan compliance, including corrections for plan operational errors. 

Ben assists clients in drafting plan documents, plan amendments, and participant communications. He also advises clients on health & welfare plan compliance, including medical and dental plans, cafeteria plans, flexible spending accounts and dependent care spending accounts. Ben counsels clients on plan design decisions relating to COBRA, HIPAA privacy regulations, and health care reform legislation.

Ben serves on the Advisory Board of the Health Care Reform Center & Policy Institute, a newly formed national “think tank” made up of the nation’s leading lawyers, consultants, government representatives and state insurance agents to influence the development of new rules and regulations under Health Care Reform. Ben is a member of the firm's Health Care Reform Team. This cross-departmental team of lawyers was formed to focus on how health care reform will affect our clients. Ben started closely following health care reform well before it was passed into law. He regularly consults with governmental agencies on health care reform developments and has submitted comments on health care reform interim regulations on behalf of clients. Ben has presented extensively on health care reform and what it means for businesses, including leading the Healthcare Reform Certification Program offered by the Employer Healthcare Congress.

Ben also serves on the Steering Committee for the Worldwide Employee Benefits Network - Chicago Western Suburbs. He has written articles concerning health care reform legislation, employer wellness programs, fiduciary responsibilities, claims review procedures and retiree medical benefits, as well as transgender issues in the workplace. Throughout the COVID-19 pandemic, Ben has presented and written extensively on employee benefits and retirement plans under the CARES Act.

Ben is recognized as a Recommended Attorney for Employee Benefits, Executive Compensation and Retirement Plans Design by The Legal 500 (2020). Prior to joining Seyfarth, Ben was a lead articles editor for the Washington & Lee University Law Review.


Brian J. Lamb is a partner at Thompson Hine LLP in Cleveland, Ohio.  His practice focuses on representing companies and their directors and officers in ERISA litigation, securities and shareholder litigation, fiduciary disputes, and other complex business litigation.  His ERISA litigation experience includes defending claims relating to employer securities, plan terminations, withdrawal liability, controlled group liability, and denial of benefits.  His 2020 articles include topics such as actuarial assumptions litigation, non-monetary concessions in ERISA settlements, and ERISA claims for cross-marketing participant data.

Brian is the practice group leader of the firm's business litigation group, which has more than 80 lawyers in eight offices.


David Larson is an Investigator with the U.S. Department of Labor, Employee Benefits Security Administration (“EBSA”). David is a graduate of the DePaul University College of Law where he earned a J.D. with a Certificate in Public Interest Law. He is responsible for investigations involving Investment Managers, Health Plans, ESOPs, Defined Benefit Plans, and Defined Contribution Plans. He has given educational presentations concerning ERISA Fiduciary Responsibilities, the Voluntary Fiduciary Correction Program, Statutory Exemptions, and 72(p) Loan Corrections. He currently serves on the Targeting Committee and the Engagement Committee. David has been with the EBSA for four years, starting out as a Student Investigator. He holds an undergraduate degree in History and English with a Secondary Education Certification.


Ilyse Schuman is senior vice president, health policy, for the American Benefits Council. In this role, Ilyse directs the development and advocacy of the Council’s health policy priorities. Before joining the Council staff, Ilyse was the Council’s Policy Board of Directors Advisory Council representative from Littler Mendelson, P.C., where she was co-chair of the Workplace Policy Institute. In this role, Ilyse provided strategic counsel and representation to clients on a broad array of workplace issues and developments in Congress and executive branch federal agencies. She was also a member of the firm’s ERISA/Employee Benefits practice and co-led the firm’s Legislative and Regulatory practice.

A former top congressional staff member and policy advisor, Ilyse worked on the Senate Committee on Health, Education, Labor and Pensions from 2001 to 2008, culminating in her role as minority staff director and chief counsel. She began her work in the Senate as chief labor counsel for Senator Mike Enzi (R-WY) on the Subcommittee on Employment, Safety and Training. After leaving the Senate, Ilyse served as managing director of the Medical Imaging and Technology Alliance. Ilyse also has served as in-house counsel at a manufacturer and market and technology leader. She holds a bachelor’s degree from Tufts University Jackson College and a law degree from Georgetown University.


Jennifer is a partner in the Chicago office of Seyfarth Shaw LLP.  In the battle for recruiting and retention, employers often look to their benefits packages to help serve as a differentiator. Clients turn to Jennifer for advice on cutting-edge benefits, as well as the tried and true basics that form the foundation of a great benefits plan. She guides her clients through the myriad of intersecting (and ever-changing) benefits laws, counseling them on approaches that reduce risk and prevent mistakes.

Jennifer began her practice in employment litigation almost 20 years ago, before shifting to employee benefits. This experience provides her with an understanding of the "real world" that employers face on a day-to-day basis, and how to be practical in finding legally sound solutions that meet the business needs of her clients.

Jennifer advises clients on the design, administration, and fiduciary responsibilities related to qualified retirement plans (401(k), traditional defined benefit and cash balance plans) and welfare benefit plans. Her experience in this area includes engaging with the Department of Labor, IRS, and Pension Benefit Guaranty Corporation on behalf of employers and plan fiduciaries, addressing plan corrections, assisting with significant corporate and plan spinoff and merger transactions with related integration issues, negotiating vendor contracts, and facilitating transitions to new record-keepers.

Jennifer also regularly counsels on welfare benefits issues, including wellness programs. She has assisted a number of clients with the transition to retiree medical exchanges and has counseled and trained clients extensively on HIPAA compliance. Jennifer has also helped numerous clients deal with changes in the economy through the design, implementation, and administration of severance plans.

As a certified Lean Six Sigma Green Belt, Jennifer delivers increased value to her clients at a time when more is expected of them. Drawing upon Seyfarth's deep capabilities in project management and technology, she continually improves her practice and the way her clients experience service delivery.

Jennifer is also vice-chair of the Seyfarth's Women's Network, coordinating the efforts of all Seyfarth offices to promote and encourage opportunities for our women attorneys. The Women's Network provides programming on topics important to women in the legal and business roles at the firm, and leads some of the firm's global philanthropic efforts to support organizations for girls and women locally and in developing countries.

Jennifer's favorite thing about Seyfarth has always been the people. She enjoys working collaboratively across all of the firm's practice groups to provide top-level advice for her clients in a variety of areas. Her clients also appreciate her ability to tap in to the vast experience of the firm's large employee benefits team across the country.

Jennifer graduated magna cum laude from the University of Minnesota after obtaining her BA with distinction from the University of Michigan.  Jennifer was named to Crain’s Chicago 2019 List of "Notable Gen X Leaders in Law."


Judith Wethall focuses her practice on employee benefits, specifically health and welfare programs. She counsels employers, plan administrators, insurers, health care providers, union funds and consultants on a wide range of ERISA compliance issues. Judith's clients include sole proprietors to Fortune 100 companies and cover a variety of industries including health care, technology, manufacturing, retail, insurance and financial.

Judith has extensive experience advising clients on health care law reform; wellness programs;  Medicare secondary payor rules; fiduciary compliance; disability leaves and FLMA; the Health Insurance Portability and Accountability Act (HIPAA) privacy and security compliance and enforcement; subrogation and claims reimbursement; state and local compliance; consumer driven health care initiatives, including HRAs and HSAs; continuation coverage (COBRA); fringe benefit programs; executive physical programs; cafeteria plans and domestic partnership coverage. Judith works with third party administrators and self-funded plans negotiating service agreements for wellness, EAPs, HSAs and leave management.

Judith represents clients before state and federal departments of Health and Human Services (HHS), including the Office of Civil Rights with regard to HIPAA privacy/security violations and Center for Medicare and Medicaid Services (CMS) with regard to Medicare retiree subsidies and the Department of Labor (DOL) with regard to health and welfare plan audits. Judith has extensive experience with payroll audits and the Internal Revenue Service (IRS), as well as the ACA’s employer shared responsibility penalties.

 


Karen L. Handorf is a Partner at Cohen Milstein and Chair of the firm’s Employee Benefits/ERISA practice group, where she leads the firm’s efforts in identifying, litigating, and appealing often novel employee benefits issues.  In this role, Ms. Handorf represents the interests of employees, retirees, plan participants and beneficiaries in ERISA cases in the district courts and on appeal.

A Fellow of the American College of Employee Benefits Counsel, Ms. Handorf joined Cohen Milstein in 2007 following a distinguished 25 year career in government service where she was the Deputy Associate Solicitor, Plan Benefits Security Division, among other senior positions she held at the U.S. Department of Labor (DOL). During her tenure at the DOL, Ms. Handorf played a major role in formulating and litigating the Government’s position on ERISA issues expressed in amicus briefs filed by the Solicitor General in the United States Supreme Court.

At Cohen Milstein, Ms. Handorf has led some of the most significant ERISA-related litigation in recent U.S. history. Under her guidance, Cohen Milstein has successfully litigated over twenty “church plan” cases, which allege that employers had improperly claimed their pension plans qualified for the “church plan” exemption under ERISA, resulting in billions-of-dollars of underfunded plans and losses to beneficiaries. In 2016, the Supreme Court agreed to hear arguments on three consolidated church plan cases, which Ms. Handorf co-led. In June 2017, the Court reversed the lower courts’ rulings, which favored the plaintiffs, but would not rule on plaintiffs’ other theories of liability, thereby re-directing the cases back to district court for further litigation. Since then, under Ms. Handorf’s guidance, the remaining cases have settled successfully or continue to be litigated in federal court on alternative grounds.

Ms. Handorf also leads the firm’s investigation into what is often groundbreaking litigation of other types of employer-sponsored defined benefit plans, such as 401ks, Employee Stock Ownership Plans (ESOPs), and health plans that are allegedly in breach of ERISA.


Ms. Mylavarapu’s responsibilities include monitoring client companies, preparing financial reviews, and performing other analyses related to fiduciary decision-making matters. Prior to joining our team, Ms. Mylavarapu was an economic consultant at Charles River Associates in their New York office. She earned the right to use the Chartered Financial Analyst designation in 2014 and is a member of the CFA Institute and the CFA Society of New York. Ms. Mylavarapu earned a B.Sc. in Finance and International Business from the Stern School of Business at New York University.


Natasha S. Fedder is a counsel in the Los Angeles, CA office of O’Melveny & Myers LLP.  Natasha focuses her practice on ERISA litigation and represents plan sponsors, trustees, and other plan service providers, as well as advises her clients on fiduciary related matters.  As a healthcare litigator, she has represented managed care payers in disputes involving out-of-network reimbursement and cross-plan offsetting.

Natasha graduated from the University of Pennsylvania Carey Law School in 2010.  After graduation she served as a clerk for the University of Pennsylvania Office of the General Counsel before beginning her law firm practice at another international law firm.  There, she handled a variety of complex labor and employment matters, including class actions arising under the Fair Labor Standards Act and arbitrations involving contract and labor disputes.  She then practiced at a Washington, DC-based law firm that specializes in benefits, retirement, and healthcare law prior to joining O’Melveny.

Natasha has been recognized by Super Lawyers as a Top Rated Employee Benefits Attorney in Washington, DC and was selected to the 2019 and 2020 Washington DC Rising Stars list for Employee Benefits.


Practice Area:

Employee Retirement and Health Benefits

Plan Governance

Fiduciary Advisory Services

Executive Compensation

International Benefits

Howard Pianko is the head of Seyfarth Shaw’s New York benefits practice. During his more than thirty-five years of experience in employee benefits law and executive compensation, he has counseled both domestic and international clients on matters running the full benefits gamut. His current practice focuses extensively on fiduciary and plan governance matters, executive compensation (including both domestic and cross-border equity and incentive plans) as well as benefit and employment considerations in M&A transactions, including post-transaction implementation and restructuring.

He is a Charter Fellow in the American College of Employee Benefits Counsel and a founding member of the International Pension and Employee Benefits Lawyers Association. He has been recognized for his professional expertise by, among others, Chambers, Legal 500 and Best Lawyers in America and also designated as a BTI Client Service All-Star. He originated and co-chairs two PLI programs involving ERISA investment considerations and another focused on the application of ERISA to the health plan space.


Susan Nash is a senior partner in the Chicago office of Winston & Strawn, LLP specializing in the area of health care reform and health and welfare benefits. She assists employers and health plans with their health care reform strategy and compliance with laws affecting group health plans, such as the Affordable Care Act (ACA), Health Insurance Portability and Accountability Act (HIPAA), Employee Retirement Income Security Act, the CARES Act, the Mental Health Parity and Addiction Equity Act, and the Internal Revenue Code.

Susan has extensive experience advising clients on innovative employee health benefit strategies and funding, including employer direct contracting with providers, population health management, on-site clinics, direct primary care, telehealth, private health care exchanges, VEBAs, and association health plans. She has counseled a wide variety of employers and health plans on HIPAA’s privacy, security, and nondiscrimination requirements. Susan has also represented clients in negotiations and audits with the Internal Revenue Service, the Department of Labor and the Department of Health and Human Services.  She regularly negotiates administrative services agreements, pharmacy benefit management agreements and agreements with point solution vendors for health and welfare plans.

Susan is recognized by Chambers USA, Best Lawyers in America, Employee Benefits and the Legal 500 U.S. as a leading employee benefits attorney. She is also a Fellow of the American College of Employee Benefits Counsel.  She is a frequent speaker on employee health benefit issues and has written extensively on these topics as well. Susan graduated from Northwestern Pritzker School of Law in 1991 and received her undergraduate degree from Georgetown University.


Uche Enemchukwu manages legal compliance for Boeing’s employee benefit plans. She advises and provides direction on a wide variety of benefits matters, including the day-to-day management of the company’s retirement and health and welfare benefit plans and the benefits matters that arise in the company’s corporate transactions. Uche is also a co-founder of Nelu Diversified Consulting Solutions, a boutique wellness consulting firm that takes a diversity, equity, and inclusion approach to wellness program strategy and implementation.

Uche is a SHRM “highly-rated” speaker and is active in the American Benefits Council, the ERISA Industry Committee, and the American Bar Association. She received her J.D. from Washington University in St. Louis School of Law and an LL.M. in Taxation from the same institution. She received her B.A. in History and Comparative Area Studies from Duke University.


For 25 years, Kirstin Poirier-Whitley has been a trusted counselor to both tax-exempt employers, including hospitals, universities, and local governments, and for-profit employers on complex tax, fiduciary, and other regulatory issues impacting employee and executive benefit programs. She provides creative advice and practical solutions for thorny plan design and administration issues, addresses the benefit plan liability and transition issues that arise in M&A transactions, and helps clients favorably settle compliance issues with government agencies.

Kirstin regularly advises on emerging options for employer-provided health care benefits, such as direct-contracting between employers and health care providers, and stand-alone options like telemedicine and second opinion services. She has extensive experience advising on ERISA, tax, Affordable Care Act, HIPAA privacy, and myriad other regulatory requirements impacting clients' health and welfare plans and related funding vehicles (e.g., 401(h) accounts, VEBAs). She often negotiates health plan service agreements with third-party administrators and network providers.

Kirstin also frequently counsels sponsors and fiduciaries of retirement plans (cash balance, pension, 401(k), 403(b), and 457(b) plans) on tax and fiduciary issues, including topical matters such as environmental, social and governance (ESG) investment considerations. She also assists tax-exempt and for-profit clients with executive deferred compensation programs (457 and 409A issues) and on all manner of fringe benefits (educational assistance, employer-provided vehicles, wellness incentives). Additionally, she counsels clients on payroll tax matters, including FICA taxation of nonqualified deferred compensation, and is experienced with state law issues impacting governmental plans, such as the vested rights doctrine.