ERISA and Health Care Arbitration and Mediation

Customized Dispute Resolution in ERISA and Health Care Disputes

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Call Michael D. Hughes, Esq. for ERISA and Health Care Alternative Dispute Resolutions

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727-388-9112

Employee Benefits and Health Care Arbitration, Mediation and Custom ADR

Arbitrator Michael D. Hughes, Esq.

Current Employer-Title Self-employed

Occupation Attorney, Consultant

Qualifications Thirty five years experience in employee benefits practice area with responsibility for all employee benefit legal matters and the supervision, training and mentoring of junior attorneys and paralegals. Advised clients in all areas of employee benefits including multiemployer (union) plan issues, PBGC matters, DOL and IRS audits, mergers and acquisitions of plans in relation to similar corporate transactions and executive compensation issues, including publicly traded, tax exempt and governmental entities. Led employment and employee benefits team in comprehensive due diligence project supportive of Section 363 bid for bankrupt major integrated steel manufacturer. Led employment and employee benefits team in comprehensive due diligence project supportive of Section 363 bid for bankrupt specialty metals and metal materials manufacturer. Represented major publicly traded generic drug manufacturer in connection with a comprehensive review of self-insured, self-administered health plan for ERISA and HIPAA privacy and security requirements. Conducted HIPAA training. Ongoing HIPAA and general privacy responsibility. Represented large publicly traded drug manufacturer in connection with Veterans Administration OIG audit of VA Acquisition contract. Represented contributing employer in connection with decertification of union and consequential MEPPAA withdrawal liability. Represented large insurance consulting firm in connection with formation of health insurance purchasing cooperative in Pennsylvania. Handled the merger and conversion of two salaried defined benefit plans into a cash balance pension plan and the submission of all plans for GUST requirements. Handled the merger of several salaried and collectively bargained 401(k) plans into a single plan covering both salaried and collectively bargained employees. Conducted comprehensive review of options and risks associated with the implementation of employee cost-sharing mechanisms for active and retiree, union and non-union, medical benefits. Consulted regarding a comprehensive review of options and risks associated with the implementation of employee cost-sharing mechanisms for active and retiree, union and non-union, medical benefits. Counseled a newly spun-off publicly traded gold producer in connection with the establishment of mirror employee benefit package. Experienced with federal and state enforcement actions and employee disclosure and enforcement actions related to employee benefit plans. Substantial experience in both transactional issues and benefit claim disputes.

Work History Attorney, self-employed, 2003-present; Of Counsel, DKW Law Group, 2002-03; Senior Attorney, Rhoades Law Firm, 2001-02; Principal, Modrall Law Firm, 1994-98; Shareholder, Houston Harbaugh, PC, 1975-94.

Education California University of Pennsylvania (BA-1972); University of Pittsburgh School of Law (JD-1975).

Professional Associations American Bar Association.

Professional Licenses Admitted to the Bar, Pennsylvania, 1975.

Publications and Speaking Engagements "U.S Department of Labor Enters the Fray of Health Care Consumer Protection," HEALTH CARE LAW MONTHLY, Matthew Bender; "Extension of Practice Ambulatory Surgery Centers," HEALTH CARE LAW MONTHLY, Matthew Bender.

SPEAKING ENGAGEMENTS: "Qualified Plan Compliance Standards," North Central West Virginia Estate and Financial Planning Council; "Employee Benefit Considerations in Joint Ventures, Acquisitions and Mergers," National Health Lawyers Association National Conference; "Employee Benefit Considerations in Joint Ventures, Acquisitions and Mergers," American Bar Association, National Conference; "Effect of TRA of 1986 on Pension and Employee Benefit Areas," Pittsburgh Association of Financial Planning; "Employee Benefit Considerations in Joint Ventures, Acquisitions and Mergers," American Bar Association, National Conference; "Employee Benefits Update," Pennsylvania Institute of Certified Public Accountants, Annual Tax Institute; "HIPAA, Advanced Strategies," Lorman Business Center, Inc.; "Institute on Health Care Reimbursement," Pennsylvania Bar Institute; and various topics including: "Planning Opportunities Under TRA of 1986," "Employee Benefit Changes," "The Effect of the Tax Reform Act of 1986 on Retirement Plans and Other Insurance Programs"; "Employee Benefit Issues After Tax Reform: Going Beyond the 'Survey of Recent Developments'; What Do We Do Now?"; and "Retirement and Benefit Issues For Tax Exempts."

Alternative Dispute Resolution Training University of New Mexico School of Law, 40 Hour Mediator Training.

Compensation $1,200 Per Day $200 Per Hour
Includes travel time and expenses for locations within 200 miles of Tampa, FL and for Pittsburgh, PA, Washington DC and locations within the State of New Mexico. Lowest available commercial air fare for all other locations and all other expenses (lodging and local transportation, meals, etc) included in fee. Cancellation policy: if less than 30 days notice, a half daily fee plus non-refundable travel and lodging expenses.

Citizenship United States of America

Locale St. Petersburg, FL

ADR Concepts and Services

ERISA Claims Dispute Resolution
- ERISA Vendor Fee Disputes
- ERISA Service Disputes
Health Care Provider Disputes
Physician Practice Disputes
- Practice Breakups
- Post termination payments - Accounts Receivable
Medical Staff Controversies
- Specialty "turf" battles
- Medical Staff Behavioral Controversies
- Physician/Hospital contract controversies
  - Anesthesia
  - Radiology
  - Critical Care Medicine
  - Pathology
  - Nuclear Medicine

What is ADR?

Alternative dispute resolution (or “ADR”) refers to a range of processes, other than litigation in court, by which the parties to a conflict can resolve or take meaningful steps towards resolving their differences.

          Within the broad range of processes and techniques generally included within the realm of ADR, certain approaches are most commonly used, and are described here. ERISA Neutral provides the services of an independent, neutral third party (often referred to as a "neutral") in each of these settings.

Arbitration

          Arbitration is a process in which the parties to a dispute present evidence and arguments to an impartial third party neutral (the “arbitrator”) or a panel of such arbitrators who make a decision on the merits of the case. It is similar to litigation in which a judge conducts a bench trial (i.e. without a jury), except that arbitration proceedings can be streamlined to reduce time and expenses as agreed by the parties.

          Arbitration can be binding or non-binding. If binding, the decision (or “award”) of the arbitrator can be enforced like the judgment of a court. In general, arbitration awards are final and not subject to appeal except in unusual circumstances. Non-binding arbitration essentially provides guidance to the parties on how their positions would be resolved in litigation, but generally cannot be relied upon in subsequent proceedings.

          Most arbitrations arise from a provision in the parties’ contract or a requirement of law that all disputes between the parties must be resolved by arbitration. In some cases, parties not bound by a contractual arbitration requirement will agree to arbitrate after their dispute arises. Arbitrations may be conducted under the auspices of an administrative body (such as the American Health Lawyers Association's Dispute Resolution Service, the American Arbitration Association or the National Arbitration Forum), or may be conducted directly by an arbitrator or arbitration panel chosen by the parties.

Mediation

          Mediation is a process in which an impartial, third party neutral (the “mediator”) assists the parties in attempting to reach a negotiated solution to their differences. The mediator listens to all parties and meets with them, both separately and together. The mediator does not make a decision on the merits of the dispute, but at the parties' request may inform them of his or her evaluation of their positions as a means of creating a more realistic atmosphere for settlement. Communications by the parties with the mediator are confidential, and generally cannot be used in any subsequent litigation if the conflict is not settled.

Med-Arb

          Med-Arb, a shorthand reference to Mediation-Arbitration, is a hybrid of these two processes. In med-arb, the neutral attempts to mediate a settlement of the parties’ differences by way of a negotiated agreement. If such efforts do not succeed, the neutral assumes the role of arbitrator and makes an arbitral award (binding or non-binding) based on all evidence presented by the parties. Some neutrals and legal counsel do not accept the med-arb process, because they believe parties will not freely trust the mediator with otherwise confidential information if it might hurt their case in the subsequent arbitration phase. Another view holds that med-arb works well as long as the arbitration, if needed, is non-binding. It is important that the precise scope of the neutral’s duties in a med-arb proceeding be understood and agreed upon by the parties and the neutral in advance.

Fact Finding

          Parties to a dispute may require or benefit from having an independent, neutral third party review a body of evidence and make specific findings of fact. In such cases, the neutral fact-finder does not make a decision on all issues in dispute, and the findings of fact may or may not, in themselves, cause the parties to settle their legal differences. The fact finder resolves an unknown or uncertain issue of fact that is important to the dispute without the need to conduct a trial, arbitration or mediation of all issues.

          Fact finding is often done by agreement of two parties in an effort to obtain an unbiased result at the least possible cost. Such agreements may be built into contractual arrangements in advance, or made post-dispute as part of a continuum of ADR processes.

Hearing Officer

          A hearing officer is an independent, unbiased third party who presides over and conducts a hearing on an issue in dispute between two or more parties, but who makes no decision on the matter in dispute. In essence, the hearing officer serves as a “private judge”, whose role is to assure all parties that the rules of due process and procedural fairness they have adopted will be properly and consistently applied.

          The hearing officer prescribes the conduct of the hearing, scheduling, logistics and the record of proceedings. In general, he or she keeps order and advises the decision making body (often a board or hearing panel) on procedural matters. A hearing officer is most commonly appointed pursuant to the provisions of an organization’s bylaws governing the requirements of due process that must be afforded to members who are the subject of some proposed adverse action. Typically, the hearing officer’s role is defined by the organization’s bylaws, although statutes and case law may add requirements not expressly stated in the bylaws.

Special Master

          A special master is an officer of the court appointed to perform a quasi-judicial role in a pending case pursuant to statute, court rule or order of the court. The services of a special master thus are not, strictly speaking, an "alternative" to litigation, but a complementary process utilized to more efficiently resolve some aspect of the parties' dispute.

          Duties of a special master can include hearing and resolving discovery matters, investigating and reporting on factual issues, implementing remedies requiring protracted or complex implementation, and monitoring compliance with settlement agreements and court orders. Special masters are typically appointed on the basis of their specialized knowledge or experience concerning the subject matter in dispute.

The Employee Retirement Income Security Act (ERISA) requires that all private pension and welfare plans establish a procedure to "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review of the decision denying the claim."

Many employee welfare and pension plans currently provide for arbitration of benefit-claim disputes in their collective bargaining agreements. For those plans that do not, the International Foundation of Employee Benefit Plans has developed these rules in cooperation with the American Arbitration Association.

American Arbitration Association

To facilitate the arbitration process, in accordance with applicable laws, the American Arbitration Association (AAA) is available to administer arbitration cases under various specialized rules.

It welcomes this latest opportunity to make its services available to employee benefit plans by issuing these rules in cooperation with the International Foundation of Employee Benefit Plans.

The AAA maintains throughout the United States panels of arbitrators that include experts in all industries and professions. By arranging for arbitration under these rules, parties may obtain the services of arbitrators who are familiar with employee benefit plans.

The Association does not act as arbitrator. Its function is to administer arbitrations in accordance with the agreements of parties and to maintain panels from which arbitrators may be chosen by them. Once designated, the arbitrator decides the issues and the award is final and binding.

Inquiries about these rules may be addressed to the International Foundation of Employee Benefit Plans, 18700 West Bluemound Road, PO Box 69, Brookfield, WI 53008-0069 (the telephone number is (262) 786-6700) or to any office of the AAA.

Withdrawal Liability Arbitration -MPPAA

Section 4221 of the Employee Retirement Income Security Act of 1974 (ERISA), added by Section 104(2) of the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), provides that "Any dispute between an employer and a plan sponsor of a multiemployer plan concerning a determination made under Sections 4201 through 4219 shall be resolved through arbitration...conducted in accordance with fair and equitable procedures to be promulgated by the [Pension Benefit Guaranty] Corporation."

The issues subject to arbitration under this section of ERISA may include, but are not limited to, the following:

The determination of whether a withdrawal--complete or partial--has occurred;
The amount of the employer's withdrawal liability;
The schedule of withdrawal liability payments; and
The reasonableness of actuarial assumptions in the aggregate, or whether a significant error was made in applying the actuarial assumptions or methods.

In August 1985 the PBGC issued a final arbitration rule under Section 4221 effective September 26, 1985. Section 2641.13(c) of the rule provides that the PBGC may approve alternative arbitration procedures. A Notice of Approval of these Rules, published by the PBGC in the Federal Register on September 19, 1985 and effective September 26, 1985, reads in part as follows:

"This notice advises employers, plan sponsors of multiemployer pension plans and other interested parties that the PBGC has on its own initiative, determined that the Multiemployer Pension Plan Arbitration Rules effective June 1, 1981, sponsored by the International Foundation of Employee Benefit Plans and administered by the American Arbitration Association will be substantially fair to all parties involved in the arbitration of a withdrawal liability dispute and that the American Arbitration Association is neutral and able to carry out its role under the procedures. Accordingly, the PBGC here by approves the AAA/IFEBP Multiemployer Pension Plan Arbitration Rules. This approval is effective as of September 26, 1985, and will remain effective until revoked by the PBGC through a Federal Register notice."

The American Arbitration Association and the International Foundation of Employee Benefit Plans are pleased to offer these procedures for the arbitration of disputes arising under the withdrawal liability provisions of ERISA. The current rules, which were approved by PBGC on June 20, 1986, include changes that reflect both PBGC-approved procedures and those suggested by AAA's experience administering its MPPAA caseload under the prior Rules.